Well Regulated: The NFA hearings (2/6) – 4/16/1934

**This is the second installment of a six-part series. In order to understand the full context of the following edition of Well Regulated, please read Part 1.**

    On April 16, 1934, United States Attorney General Homer S. Cummings testified before the House Committee on Ways and Means regarding H.R. 9066, The National Firearms Act. The Attorney General’s statements and those made by the few Congressman who chose to speak were despicable. The elitism (and complete ignorance of the very class of items he sought to regulate) displayed by the Attorney General does not even compare to his utter disrespect towards the people and complete disregard for their essential liberties. This issue in Well Regulated’s series on the NFA hearings will attempt to summarize and analyze the Attorney General’s statements, the questioning by Congressmen, as well as the memorandum filed after the hearing in lieu of providing specific statistics at the time. This article is covering a significant amount of transcription, with speakers changing frequently. To help reduce confusion, the article is broken into sections which (roughly) correspond to a specific congressman asking questions to the Attorney General. Interjections were frequent occurrences, so there may be references to other congressmen speaking even if the section header does not bear their name. This is not an error, merely a result of trying to cover such a complicated matter. Finally, this article is by no means exhaustive, and is merely a basic description and analysis of the hearing, for more complete information, please read the full transcript.

Attorney General Cummings’ opening statement

Cummings began his hearing by giving an extensive statement, outlining his main arguments as to why the bill should be passed. Specifically, he addressed the contemporary state of crime in the United States, why he feels the law is acceptable, and what he feels its utility is. The Attorney General painted a picture of crime in the United States wherein heavily armed, interstate criminals had become such a severe danger to society that local police could not control the situation. Rather, the only viable means of addressing this new breed of criminals was the creation of a massive, complex bureaucracy which would take only as much power as “absolutely necessary” (pg 4) to address these crimes, all with an “eye to constitutional limitations” (pg 4). Cummings estimated that there were approximately half a million “people in the underworld today armed with deadly weapons…twice as many, as there are in the Army and the Navy of the United States combined” (pg 4). Without a clear designation of how to address such “predatory criminal[s] who passes rapidly from State to State” (pg 4), the Attorney General argued that they could continue to evade arrest by existing in a “shadowy area or twilight zone between State and Federal power” (pg 4).

The Attorney General continued by detailing the “astounding” (pg 5) public support and comment for such a law. However, in neither his testimony nor the memorandum filed after the hearing was there any mention of the number of citizens who contacted the Justice Department or any direct quotation of such that would substantiate his claim. It is at this point that Cummings used a very clever rhetorical trick where he emphasized how there were a number of “worthless…extreme…[and]…untenable” (pg 5) propositions put forth. He then went on to state that while “this bill is drastic in some respects” (pg 5) that his department has “eliminated a good many suggestions that were made by people who are a little more enthusiastic about…the possibility of curing everything by legislation.” (pg 5) This frames an extremist bill as a moderate proposal where the state refuses to yield against a deluge of demand for even more restrictive laws, and will continue to ensure our rights while still tackling crime. This portion of his opening statement concludes with a section which will be quoted in full to emphasize its similarity to the rhetoric still used by the gun control movement today:

“For instance, this bill does not touch in any way the owner, or possessor, or dealer in the ordinary shotgun or rifle. There would manifestly be a good deal of objection to any attempt to deal with weapons of that kind. The sportsman who desires to go out and shoot ducks, or the marksman who desires to go out and practice, perhaps wishing to pass from one State to another, would not like to be embarrassed, or troubled, or delayed by too much detail. While there are arguments for including weapons of that kind, we do not advance that suggestion.” (pg 5-6)

The linguistic trickery demonstrated here is masterful. In a mere four sentences, Cummings said that the only “ordinary” (read: legitimate) use of firearms is for sporting purposes, normal people should not concern themselves with this law (and so they can ignore the infringement), firearms used for sporting purposes are manifestly different from all others, and finally that the proposition of banning even sporting arms is not untenable. He did this all while presenting the impression that he is a mere impartial actor with only the best of intentions, acting in accordance with the will of the people and while held in check by the Constitution.

The opening statement continued with brief discussion of the technicalities of the law and the firearms being regulated by it (the definitions can be found in Part 1). There are several claims made by Cummings on firearms use and practical design which are particularly egregious. He specifically cites expert advice on the subject of shotgun barrel length, saying that their belief is that shotguns should be restricted to a barrel length of 18-20” (as opposed to the 16” limit in the bill). Just as with the alleged overwhelming support of such legislation from private citizens, the Attorney General did not give any specific names as to who these experts were, or provide any clarifying information as to how they arrived at this suggestion. He also failed to provide any citation for his claims on “sawed-off” shotguns and machine guns:

“A sawed-off shotgun is one of the most dangerous and deadly weapons. A machine gun, of course, ought never to be in the hands of any private individual. There is not the slightest excuse for it, not the least in the world, and we must, if we are going to be successful in this effort to suppress crime in America, take these machine guns out of the hands of the criminal class.” (pg 6)

It would be ridiculous to argue that a “sawed-off” shotgun is not dangerous – any firearm is dangerous – but a firearm which is not dangerous would be a useless weapon for any practical use. Some criminals of the Depression-era did make use of cut-down shotguns in the commission of their crimes, one of the most famous pictures of Bonnie & Clyde even shows Bonnie holding a Remington Model 11 20 gauge shotgun that has a shortened stock and barrel. However, short-barreled-shotguns (SBS) were not solely the domain of the criminal. Obviously, in the current day, SBSs are widely used for defensive purposes by civilians and have seen extensive use by police and military. But even 100 years ago, many recognized the potential of a compact shotgun for defensive use. One such example is the Ithaca Auto and Burglar (today, this firearm is classified as an AOW, not an SBS) which was a side-by-side in 12, 20, 28, or .410 gauge that featured a 10” barrel and pistol grip. This firearm was explicitly marketed as a defensive weapon to protect against the very types of criminals that the NFA supposedly was created to combat. The Attorney General’s offensive statement that a civilian should never possess a machine gun is also worthy of note. First, it must be stated that neither the bill nor the law it would become prohibit civilian possession of a machine gun (an issue raised later in the testimony), but they did place an excessive and prohibitive tax on their transfer. Second, the claim that this law would take machine guns out of criminal possession is absurd on its face. The NFA has not stopped any criminal determined to possess a machine gun from acquiring one. Not only has it not disarmed criminals in hindsight, the Attorney General even contradicts this sentiment later in his testimony, acknowledging that the law would not stop any criminal from arming himself. Just as with much of his testimony, the Attorney General gave no reason as to why a civilian should be prohibited or in any way restricted from possessing a machine gun – perhaps because in reality, no such reason exists.

Bonnie and Clyde with the aforementioned Model 11 shotgun.
Photo credit: garandthumb.com
A “model A” (bottom) and “model B” (top) Ithaca Auto & Burglar.
Photo credit: Ian McCollum, Forgotten Weapons

Finally, Cummings concluded his opening remarks by explaining why such a law was not only legal, but within the abilities set out for Congress. Essentially, he argued that there were two authorities given to Congress which applied in this context, “one, the taxing power, and the other, the power to regulate interstate commerce.” (pg 6) At the time, there was already a 10% tax on the purchase of handguns, which accrued $35,388 in 1933 (pg 6) ($7,065,530.94 when adjusted for inflation). This type of precedent was sufficient justification for the Attorney General to advocate for trampling on the rights of every American. He also argued that such a law would pay for itself in the revenue generated, preempting the concern that the addition of a bureaucracy to administrate the NFA would necessitate additional federal budget.

James A. Frear (WI-R)

Congressman Frear began his questions to the Attorney General by praising the work done by his department, specifically in the areas of prosecuting kidnappings and other interstate crimes. His first question was promising in that he inquired why the bill didn’t include a provision to address criminals such as John Dillinger who acquired weapons and body armor (referred to in the text as “vests” or “coats”, bullet-resistant clothing and accessories being called “body armor” is a fairly recent change in the lexicon) by robbing police stations. This would seem to be an excellent question, illustrating the criminal’s ability to arm himself regardless of what the law says. But, in case the reader begins to assume that the congressman was concerned about Americans’ rights, he proceeded to state that “Those coats and those vests, that are for armament and purely a matter of criminal use, if this bill could be broadened in any way to cover those things— whether your office had considered that.” (pg 7). Cummings’ reply is simply illuminating as to the nature of gun control:

“First, with regard to reaching a man like Dillinger: There is nothing specific in this act that deals with that situation…Now in regard to vests and other protective armament, the reason we did not go into that, to be perfectly frank with you, sir, is because we were not confident that the committees would go along with us. There is a great deal of hesitancy in expanding the Federal powers too much and these things that you mention were merely left out as a matter of judgment. Now if the committee wants them in, it is all right with me.” (pg 7)

He outright acknowledged that the law would not stop a criminal such as John Dillinger from arming himself. Moreover, he stated that the only reason why his department did not try to infringe upon Americans’ access to even more items was because he believed that Congress was not quite as fervent in its disdain for civilians’ ability to adequately protect themselves. Frear even went so far as to say “It seems to me that there are very few people who are innocent wearing clothes of that kind, even for their own protection.” (pg 7) It is beyond this author’s understanding how someone could reach the conclusion that possession and use of body armor – the most passive and non-violent form of self defense – could be considered criminal by default. He outright dismisses the notion that someone might use such an item for mere self-protection, even though the police who John Dillinger (and other criminals) stole from possessed body armor for exactly that reason. This issue of body armor was further elaborated on with the Attorney General stating that he only considered the government to have the ability to regulate such items through the power of taxation and regulation of commerce. Indeed, he even stated that though he would like such items banned outright, he was unsure that there was a legal theory that could allow for the federal government to ban what he himself described as “armaments”. If nothing else, this indicates that the Attorney General knew he was at the very least toeing the line of violating the Second Amendment, but only saw the Constitution as an inconvenience in his ability to impose his will on the people.

Jere Cooper (TN-D)

Congressman Cooper began his questioning by asking if the provision that possession of one of the firearms regulated by the bill, without a reason satisfactory to the jury, being sufficient cause to attain a conviction, was not in accordance with the presumption of innocence. The Attorney General cited the Narcotic Drug Act of 1909, elaborating that the burden of proof was on the prosecution to demonstrate the defendant’s possession, and that the Narcotic Drug Act of 1909 had been upheld by the Supreme Court. Cooper then specified that this question was merely so that the Attorney General’s response would be on the record. He then raised the issue of what to do about weapons already possessed by criminals. Cumming’s responded that he desired “ the establishment of a system for the tracing of the weapons from owner to owner by a certificate of title might also be attempted with reference to arms already in existence.” (pg 9) as well as making possession without a permit of the weapons detailed in the bill an offense in and of itself. The idea, as presented by Cummings, was that this would be a system for tracking weapons and an easy charge to pin on individuals. Or, to use his own words:

“It deals with the tracing of these weapons if traded or transferred after this act goes into effect; it deals with the requirement of licensing if a person is to take any weapon across State lines. And I am assuming in all this, of course, that the criminal elements are not going to obtain permits and they are not going to obtain licenses, and they are not going to be able to bring themselves within those protective requirements. Therefore, when we capture one of those people, we have simply a plain question to propound to him—where is your license; where is your permit? If he cannot show it, we have got him and his weapons and we do not have to go through an elaborate trial, with all kinds of complicated questions arising. That is the theory of the bill.” (pg 10)

Take note that the Attorney General plainly admitted that criminals will not follow this law. The idea that this would prevent crime does not factor in, rather, it is merely a means to arrest and charge with efficiency. To the uninitiated this may sound well and good, but consider the probability of the matter. How many criminals like John Dillinger existed at the time? Heavily armed, interstate gangsters who evaded the law for years were a rarity – that is why they have been so capable of capturing the public imagination for decades. Which is more likely to be imprisoned by this type of governance: the rare few John Dillingers, or everyday citizens who could not or would not bend the knee to a bloated federal bureaucracy which admits its own laws cannot keep citizens safe? There is a saying that it is better that 100 guilty men go free, than one innocent man be imprisoned – it is this very way of thinking that was instrumental in the establishment of this nation. However, such notions seemingly had no impact on the Attorney General or his ilk, such as President Franklin D. Roosevelt, who “ha[d] authorized [him] to say he was strongly in favor not only of this measure, but of all the other pending measures the Department of Justice has suggested.” (pg 10)

Jere Cooper proceeded to ask for the Attorney General’s position on what the taxes levied by the bill for transfer of the relevant firearms should be. At the time, there were no set amounts for the “tax stamps” (as they’re known today) or fees for those engaged in the firearms business. Cummings reccomended a tax of $5000/year for importers or manufacturers, $200/year for dealers, $200 for machine gun transfers, and $1 for other firearms (pg 11).

Roy O. Woodruff (MI-R)

Note: Woodruff interrupted Cooper’s questioning, but he spoke long enough to justify a separate section.

Woodruff interrupted Cooper’s line of questioning to ask several questions, but he began by asking for clarification on a statement made by Cummings that machine guns were manufactured almost exclusively by four companies. Additionally, Woodruff said of imposing a tax that would effectively target only a few companies:

“They can not…have much reason to complain if the tax were made much larger…machine guns are in the possession of practically all of the criminals in the country who desire them; the fact that they have them must be due, to some small extent at least, to either carelessness or worse on the part of the people who manufacture those guns. Is that a reasonable deduction?” (pg 11)

Cummings’ opinion on the matter was that in the past, negligence by manufacturers had led to possession of machine guns by criminals. However, Cummings continued by saying that Colt Mfg. – “the only manufacturer now of the type of machine gun used by gangsters” (pg 11) – had a verbal agreement with the DOJ to take better care of ensuring that machine guns did not get into the hands of criminals. While anyone familiar with firearms in the United States is surely aware of dealers which add additional restrictions to purchase weapons, or companies engaging in “back room” deals with politicians, it is the commentary on Colt specifically that is so interesting. Colt has been a massive producer of military and police weapons for over 100 years, and management wanting to maintain a good relationship with the government is understandable from a business standpoint. But the fact that Cummings said that Colt was the “only manufacturer” and later comments (which will be addressed) leads to the conclusion that he is referring to the Thompson submachine gun. There were several variants of the Thompson sold, and the history is far too complex to address with any level of serious detail, but it should be noted that Colt did manufacture 15,000 M1921 Thompson submachine guns. However, not all Thompsons were manufactured by Colt, such as the 1928a1 which was made by Savage Arms. Additionally, the M1921 was built by Colt, but sold by Auto Ordnance, and only approximately 10% of sales prior to the M1928 were to civilians (as estimated by Ian McCollum). Overwhelmingly, sales of Thompson submachine guns were to police, military, businesses, and banks. The Thompson was in many ways the most popular automatic weapon for criminals, but that is in large part because it was one of the only hand held automatic firearms. Other designs were in use, such as the Lebman machine pistol which was carried by both Baby Face Nelson and John Dillinger, but their miniscule production numbers tilted the scales towards the Thompson. (It should be noted that there were other handheld automatic weapons which had been and were produced at the time such as the MP-18 and M712 “Schnellfeuer” but this article is focusing on what would have been most available in the American market.) It is issues of vague and imprecise language, such as these remarks by Cummings and the congressmen, that demonstrate little to no actual knowledge of the items they sought to regulate.

Jere Cooper (TN-D) (cont.)

At this point, Cooper reclaimed his time, and continued his line of questioning as to the Attorney General’s recommended tax amount, first by asking the average cost of a machine gun. Cummings explained that the average cost to a purchaser was $200 (this is further evidence that the “Colt machine guns” referred to earlier were Thompson submachine guns, as they had an average cost of $175-200). Bear in mind that at the time, the average American made around $1,400/year ($27,155.61 when adjusted for inflation) and today, the average salary is $49,764/year. When we adjust for inflation, the cost of a Thompson submachine gun would be $3,879.37, but when the price is adjusted to reflect portion of income, it would be $7,109.14. This means that with the additional tax, a Thompson would be the equivalent of someone today spending $14,218.27 – the cost of a car. The Thompson was already priced out of the range of anyone but the rich and the government.

The next topic of discussion was the fines and prison sentences which would be imposed for violating the law and the total revenue which would be accrued by its implementation. Cummings stated that the fine of $2000 and imprisonment of up to five years was copied directly from the Harrison Anti-Narcotic Act of 1909 (mentioned earlier). The revenue that would be generated by the NFA was estimated at $100,000/year (pg 12) – $1,939,686.57 when adjusted for inflation.

James V. McClintic (OK-D)

Cooper yielded to McClintic for a question so important that the exchange must be included in full:

MR. MCCLINTIC (OK-D): I would like to ask just one question. I am very much interested in this subject. What in your opinion would be the constitutionality of a provision added to this bill which would require registration, on the part of those who now own the type or class of weapons that are included In this bill?

ATTORNEY GENERAL CUMMINGS: We were afraid of that, sir.

MR. MCCLINTIC (OK-D): Afraid it would conflict with State laws?

ATTORNEY GENERAL CUMMINGS: 1 am afraid it would be unconstitutional.

McClintic only asked the one question, but it is the most crucial factor in any law regulating weapons, whether this violates the Constitution. Strictly speaking, the Attorney General’s statement only implies that he was unsure as to whether it would be a violation of the Second Amendment or not. This contradicts his previous statements that the law was fully in line with Congress’ constitutionally appointed abilities. The NFA was upheld by the Supreme Court in US v Miller 1939, and while the legal reasoning is too complex to unpack here, the majority’s opinion is somewhat in line with the Attorney General’s arguments as outlined in his opening statement, while disagreeing in other respects.

Thomas H. Cullen (NY-D) then interrupted McClintic’s interruption with a question on the taxes already being collected by the government on handgun sales (approximately $35,000/year). Congressman Cooper clarified that the existing tax on pistols would be eliminated when the NFA went into effect.

Harold Knutson (MN-R)

Those familiar with the NFA as it currently exists will notice that the bill (included in both Part 1 and in the full transcript) did not include regulation of rifle barrel length. Knutson asked if there “would…be any objection…after the word “shotgun” to add the words “or rifle” having a barrel less than 18 inches?…It seems to me that an 18-inch barrel would make this provision stronger than 16 inches, knowing what I do about firearms.” (pg 13), adding that he did not wish to interfere with his constituents ability to possess deer hunting rifles. This line of reasoning is extremely odd given that the congressman was asking to add restrictions which would make it harder to acquire rifles. Aside from the obvious issue that the right to keep and bear arms does not exist to protect hunting, there is no mention of how or why such a barrel length restriction should exist. Evidently Mr. Knutson knew very little about firearms, because even if only looking at hunting rifles, barrels below 18” are commonly used, especially in dense growth or when hunting fast moving targets. Contemporary sporting rifles were sold with shorter barrels, such as “trapper” configurations of Winchester lever action carbines. Today, many hunters have taken to using AR-15 style carbines or pistols chambered in .300 blackout for it’s additional mass (when compared to a 5.56) and performance in sub 10” barrels (where 5.56 is ineffective). Unsurprisingly, Cummings had no objection to regulating rifle barrel length.

A 1907 production Winchester 1892 “trapper” carbine with a 14” barrel, chambered in .44 WCF.
Photo credit: Rock Island Auction Company
A .300 blackout SBR with a suppressor intended for coyote hunting.
Photo credit: Military Arms Channel
A graph on 5.56 velocity vs barrel length.
Photo credit: Small Arms Defense Journal

Finally, Knutson asked why there should be any legal sale of machine guns to any entity outside of the government, and the Attorney General’s response is fascinating. According to the Attorney General, the only reason why machine guns should be legally sold to non-government customers is that “…there are other conceivable uses. For instance, in banking institutions, we want to protect the banks.” (pg 13) There is no question that robbing banks, just like any form of theft, is morally wrong, and there is nothing objectionable with a bank seeking out an effective means of protecting against armed robbery. However, the context of when this was said in combination with the Attorney General’s previous statements makes this excerpt stand out. 1934 was the middle of the Great Depression, and while there is not a consensus amongst historians on what specifically caused the Depression, most Americans felt that the country’s financial institutions were to blame. It was this resentment towards banks that led to many criminals attaining a Robin Hood-esque status in the eyes of the public. Bank robbers were seen by many as folk heroes fighting back against institutions which had harmed the public, such as Pretty Boy Floyd, who burned mortgage records from the banks he robbed. This rhetoric from the Attorney General combined with his complete and utter lack of concern for the average citizen’s ability to defend themself shows a complete disconnect from the people he supposedly represented.

Hatton W. Sumners (TX-D)

Note: Sumners was a congressman, but not a member of the Committee on Ways and Means.

Sumners raised an interesting question regarding the definition of a machine gun and legal workarounds to it. The bill’s definition of a machine gun was “any weapon designed to shoot automatically or semi automatically twelve or more shots without reloading”, but if a magazine held fewer than 12 rounds, it would make the firearm not a machine gun, regardless of function. Cummings claimed that machine guns (as stated earlier, clearly this is in reference to the Thompson) were only manufactured by Colt, and that the company would not try to “evade the law”. The Attorney General’s factually incorrect (and inconsistent) statements about the number manufacturers of machine guns have already been addressed by this article, but they will be expanded on in the next section. While some companies might adhere to the spirit of the law so as to stay in the state’s good graces, it is more than a bit naive to assume that every company would act in kind, especially coming from such a high-ranking bureaucrat.

Roy O. Woodruff (MI-R)

Woodruff continued on the line of questioning opened by Sumners regarding the manufacturers of machine guns. This exchange is particularly frustrating because of the imprecise and inaccurate language used by both parties. The congressman asked if Cummings was sure that Colt was the only manufacturer of machine guns, and Cummings clarified that Colt was the sole manufacturer of “the submachine gun, the small kind” (pg 14), again, presumably referencing the 15,000 Thompson M1921s that were manufactured for Auto Ordnance. Cummings also said that some machine guns were imported into the United States, and on further questioning from Woodruff on “the Browning machine gun” acknowledged that it was manufactured domestically. Informed readers are surely wondering what these men meant by “the Browning machine gun” – John Moses Browning was the single most successful and prolific arms designer of all time, and designed multiple machine guns. The list of potential firearms that they might have referred to is shortened by Cummings’ statement that the Browning is a large gun manufactured by Colt. As has already been discussed, Cummings’ claims about which companies manufacture which firearms are clearly dubious at best, but for the sake of simplicity, let us assume that he is correct in this matter. Browning designed five automatic firearms, and all of them had at least one variant manufactured by Colt: the M1895M1917BARM1919, and M2. No other clarifying information was provided, so it is impossible to make a statement as to one of the models specifically. The claim that “the Browning gun is not easily transportable; it is a large, cumbersome weapon that would probably not be used by the criminal class.” (pg 14) warrants examination, because based on the description, there is not a shred of fact. All of the aforementioned machine guns are heavy, mounted, belt fed weapons with the exception of the BAR which was a shoulder fired rifle (although there was period doctrine to use the M1918 while firing from the hip). For simplicity, we will group these generally into the BAR and belt fed machine guns more generally. Both of these categories of firearm have seen extensive criminal use. The BAR was Clyde Barrow’s preferred weapon, even modifying the rifles he stole from National Guard armories with cut down barrels and custom 40-round magazines. Heavy belt fed machine guns have been used to great effect by criminals, most infamously the Mexican cartels. As this article has stated multiple times, there is no mention of where the Attorney General received so much blatantly false information, much of which is inconsistent with other claims or completely illogical.

Woodruff finished his questioning by detailing his past efforts to pass gun control and his praise for the Attorney General and his department.

Clyde Barrow posing with two BARs and a Remington Model 11.
Photo credit: Range 365
Two members of Cartel de Sinaloa with a Browning M2 machine gun.
Photo credit: Blog del Narco

Claude A. Fuller (AR-D)

The first question asked by Fuller was on whether or not current owners of handguns would have to register and pay for a stamp on firearms the currently owned. According to the Attorney General, a tax stamp would only be required upon transferring the firearm, meaning that all currently possessed handguns would not require any additional paperwork provided that the owner was in compliance with state and local laws. At this point, Fred M. Vinson (KY-D) interjected to ask for clarification on the point of interstate transport of a firearm. Vinson’s issue was that in order to travel between states, according to the language in the law, one would have to acquire a permit from each state which they passed through. Cummings rejected this interpretation as not being the intention of the law, but Vinson responded that “It is not a question of what is in contemplation; it is a question of the language, General.” (pg 16) Ultimately, Cummings stuck with the claim that it was not the language of the bill, but that if the committee felt that the language led to a person needing a permit for every state they passed through, he would have no objection to the language being amended to state that more clearly. Vinson finished his interjection by asking as to whether the wording was sufficient to protect from prosecution a police officer who carried a handgun across state lines in the pursuit of a criminal. Just as with most similar questions, Cummings felt the current language would likely be sufficient, but that the committee should feel free to improve it. Fuller then reclaimed his time to ask a final question and make a clarifying statement. He wanted to know whether a police officer would be subject to a $200 tax if he were purchasing a machine gun for the purpose of pursuing criminals, and the Attorney General pointed to an exemption for such persons on page 9, line 6, section 12. Finally, Fuller stated his agreement with the Attorney General’s position on the possession of an unpermitted machine gun being cause for conviction not making him “guilty until proven innocent. Cummings also specified that “[t]he four concerns that are chiefly concerned in this matter are…Colt Manufacturing Co….[S&W]…[H&R]…and Iver-Johnson”. Presumably, he meant that all four were impacted as prominent manufacturers of handguns (Colt being the only one which had manufactured machine guns as of 1934).

This section of testimony highlights two crucial strategies still used by proponents of gun control today: grandfathering and LEO exemptions. Those seeking to advance a gun control agenda are well aware of the fact that even if it is their ultimate goal, trying to get too extreme a restriction passed at once will not be successful (this was even acknowledged by Attorney General Cummings in his testimony). So, they use incremental laws which build on each other, they describe compromises as “loopholes” and they preempt resistance to legislation by only having it affect civilians who seek to acquire certain weapons after the law is passed. The government is of course not inclined to disarm itself and its agents, which is why laws banning police procurement of certain weapons are incredibly rare. Furthermore, the mentality of “I’ve got mine” is a powerful tool to minimize resistance amongst current gun owners. Most AWBs include a grandfather clause wherein people who already owned a now banned configuration of firearm are allowed to keep it, making them less likely to oppose the legislation. These strategies are not new, they have been used for decades, but more people are becoming aware of such tactics, and their efficiency is waning as the pattern of behavior repeats.

David J. Lewis (MD-D)

The first several questions raised by Congressman Lewis were on the comparison of the United States to other countries in terms of statistics and laws. Unlike with his statements on machine guns, the Attorney General declined to comment until he had the correct figures in front of him (this memorandum will be addressed at the end). This led to a discussion of the kidnapping of Charles F. Urschel, but this article will not summarize the kidnapping for the sake of brevity. The issue of how this law supposedly escapes the Second Amendment’s denial of the government’s ability to restrict possession of weapon was also re-examined. Since the subject of regulation through taxation not technically being prohibition has already been addressed in this article, it will not be summarised again.

However, there are two key instances in this exchange which cannot go unaddressed. The first is a statement by Lewis:

“What I have in mind mostly, General, is this: The theory of individual rights that is involved. There is a disposition among certain persons to overstate their rights. There is a provision in the Constitution, for example, about the right to carry firearms, and it would be helpful to me in reaching a judgment in supporting this bill to find just what restrictions a law-abiding citizen of Great Britain and these other countries is willing to accept in the way of his duty to society.” (pg 18-19)

This way of thinking should make any American’s blood run cold. In current discourse, the word is overused to the point of irrelevance, but in this instance, it is entirely appropriate to describe the congressman’s beliefs as fascistic. Diminishing the natural right of defending life, liberty and property to some far flung notion dreamed up by a rare few is so far out of line with the original intent of the framers that it denies the validity of the founding documents in whole. No individual has a duty to restrict or diminish his God given rights as a service to the collective. Rather, it is the duty of the collective to respect the rights of the individual. The second instance which must be addressed is the idea that mandating permits for hundreds of thousands of innocent, law abiding citizens will unduly punish them for the carrying of a firearm for lawful purpose. Simply put, the Attorney General said that while some may believe it too drastic, “we have gone as far as we thought we could”, meaning that he would have liked a more restrictive law, but thought that the legislature would only approve of something less extreme.

Brief interjections by Hatton W. Sumners (TX-D), Attorney General Cummings, and James V. McClintic (OK-D)

Sumners requested permission to ask about body armor, but the Chairman explained that it had already been discussed. The Attorney General also advised that the law should include a prohibition of defacing serial numbers. At the time serial numbers were not required for firearms, and while larger companies, such as Colt, included them, smaller manufacturers would often not bother. Cummings seemingly followed the same logic on serial numbers as for permitting. He acknowledged that criminals already defaced serial numbers on their firearms to impede the ability to trace them, and presumably this measure was intended to provide another means of prosecution. McClintic briefly praised the Justice Department’s handling of the Urschel kidnapping.

Fred M. Vinson (KY-D)

Vinson’s exchange with the Attorney General was on the subject of the issue of presumption of innocence or guilt as it relates to the possession of a machine gun (or other weapon). Just as with the concept of “prohibition versus regulation” the basic arguments have already been explained in this article. However, on this issue, Vinson provided some of the only substantive pushback to the Attorney General in the entire transcript. The Attorney General cited Mobile Railroad Co. v. Turnip Seed 1910 as evidence to his claims on presumption, and assured Congressman Vinson that such a provision would be sustained by the courts. Although this article is intended to avoid extensive quotation in favor of summary and analysis, the exchange on this issue justifies a break from convention:

MR. VINSON (KY-D): Of course I may reach that same conclusion: but, at the present time, I am just as far distant from such a conclusion as a person could be.

ATTORNEY GENERAL CUMMINGS: Well the test is this, that it is only essential that there shall be some rational connection between the fact proved and the fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.

MR. VINSON (KY-D): That provision there puts a citizen of the United States on trial, innocent, however, as he may be, and compels him to rebut by competent evidence something that is not part and parcel of the crime; that is, a 60 days’ bona fide residence.

ATTORNEY GENERAL CUMMINGS: Mr. Congressman, it is perfectly natural to look at this crime problem from two angles; one, the angle of the defendant who may get into trouble-

MR. VINSON (KY-D): I am looking at it from the angle of a law-abiding citizen.

ATTORNEY GENERAL CUMMINGS: That is what I say, and I have no fear of the law-abiding citizen getting into trouble. The other angle is that of the prosecuting agency who desires to stamp out criminal practices.

Now we are dealing with armed people, criminals, who have hideouts in various spots. They will stay in one place a little while and in another place a little while, and move about—always with arms; always with arms. We have recently broken into places where criminals had recently left and found regular arsenals of machine guns, revolvers, pistols, clips, vests, and the Lord knows what. Now this particular provision was calculated to enable us to have a case against people of that kind. Your fear is that it might be used as an engine of oppression against some innocent citizen.

MR. VINSON (KY-D): Let me say to you. General, have been on the prosecution end of the law myself and can view it from the prosecutor’s side of the case and, so for as the purpose in the prevention or restraint of this crime wave is concerned, of course we are in complete accord. But we have had some recent experiences in regard to splendid purposes that have been written into the law. I could refer you to the 5-and-10-year provision of the Jones Act. Nobody questioned the purpose of those of us who voted for that legislation; but, when we got off in the coolness and calmness of retrospect, we had something there that I do not think any English speaking people had over seen prior to that time, and I know have not seen since.

ATTORNEY GENERAL CUMMINGS: I will leave that to the committee.

It is commendable that the congressman expressed concern for the rights of Americans, and did not show deference to the Attorney General’s willingness to execute extreme control over the people. On the other hand, it is a shameful fact that the committee expressed more concern with how much money the government would make and whether it was possible to effectively skirt the Constitution than protecting citizens’ rights.

Claude A. Fuller (AR-D)

Congressman Fuller questioned the Attorney General a second time, he began this round of questioning by asking about requirements for fingerprinting and photographs to transfer a handgun. Once the Attorney General had confirmed that such measures would be required, Fuller asked if such a measure would “cause an awful revolt all over the United States amongst private citizens, that the Federal Government is taking too much authority?” (pg 22) at which point Cummings corrected himself by saying that such measures would be required to acquire a handgun, not continue to possess or dispose of one. After a similar question on fingerprinting and photograph requirements for transport, the Attorney General said that they would be required in order to attain a permit to transport a handgun. Fuller’s next question will be included in full because it comes so close to fully understanding the practical flaw with these types of prohibitions (moral and constitutional issues aside):

“Now, another question: You know that naturally, outside in your private life, as a practitioner, there is more or less resentment on behalf of all law-abiding people to be regulated too much, especially about pistols. Would it in your opinion seriously injure the object and purpose of this bill if you would eliminate pistols and let us get as strong a law as possible for sawed-off shotguns and machine guns—the very thing you are trying to reach? That sentiment is reflected in Congress here. And it is no trouble for a criminal to get a pistol any time he wants it, even if you pass this law; but it would have a wholesome effect to stop him on these machine guns and sawed-off shotguns.”

The first point made is entirely accurate, and I know of very few firearm owners who do not have a deep seated resentment towards the excessive restrictions placed upon us (with the exception of a few “fudds”). As to the second claim, namely that criminals can always acquire a handgun if they so desire, the congressman again is correct. Gun rights advocates have said for decades that gun laws don’t stop criminals from arming themselves, the congressman admitted it, the Attorney General even admitted it when questioned by Congressman Cooper. Despite this, Fuller still claimed that the law would in any way stop criminals from acquiring machine guns and SBSs. Machine guns at least would have to be stolen, built from scratch, purchased from a bribed government official, etc. just like they are today. While the logic that preventing civilians from purchasing machine guns would keep them from criminals is fundamentally flawed, there is still a specious argument to be made. If the congressman acknowledged that criminals would break the law by illegally purchasing handguns, surely he could understand that a criminal could just as easily purchase a shotgun and hacksaw from the Sears-Roebuck catalog.

Ads for shotguns in the Spring 1922 Sears, Roebuck, and Co. catalog – single and double barrel shotguns were an affordable and utilitarian choice for everyday Americans.
Photo credit: Princeton University/Google

Americans being able to freely purchase handguns while still heavily regulating machine guns and SBSs was not sufficient for the Attorney General who claimed that “the sooner we get to the point where we are prepared to recognize the fact that the possession of deadly weapons must be regulated and checked, the better off we are going to be as a people.” (pg 22) He also acknowledged (once again) that it is easy for criminals to acquire weapons and that “[he did] not expect criminals to comply with this law…[or] expect the underworld to be going around giving their fingerprints and getting permits to carry these weapons” (pg 22) This was followed by a reiteration of the argument that this law would make it easy to prosecute criminals, and that was sufficient cause for its implementation. There is a refreshing honesty in a gun control advocate openly admitting that their laws are not only completely and totally impotent in the face of crime, but that their only practical use could be to prosecute violent individuals after they have already committed a robbery or murder.

Interjection by David J. Lewis (MD-D)

Lewis made a brief statement that the federal government convicted Al Capone on income tax charges because they did not have the ability to arrest him by another means.

Fred M. Vinson (KY-D) (cont.)

Congressman Vinson made a brief statement to the Attorney General once he had been handed a copy of Mobile Railroad Co. v. Turnip Seed 1910. The congressman argued that the case did not provide any strong support for the type of presumption included in the bill. Rather than address the argument at the time, the Attorney General deferred to a memorandum which he would file after the hearing.

Samuel B. Hill (WA-D)

The very first question asked by Congressman Hill was regarding the lack of a provision for the government to “check up” on those who owned magazines for machine guns and require identification for their purchase, a suggestion which the Attorney General found to be “very good” (pg 23). It should go without saying, but for those unaware, a clip is a tool used to load ammunition into a magazine, while a magazine feeds ammunition into the action of a firearm. In the early days of detachable magazines, there was some use of the word “clip” when referring to a magazine, but the fact remains that the distinction is an important one. It is also not entirely clear whether the congressman fully understood the distinction between magazines and ammunition, as he expressed his belief that such a restriction on handgun or shotgun ammunition would not be popular. This hypothesis is supported by Lewis asking if “they have a different type of cartridge” (pg 23). For those unaware, the Thompson submachine gun fired .45 ACP, one of the most common calibers of the era, and still a popular choice today (although it is losing in popularity to 9mm). Thompson M1921 submachine guns theoretically operated off of the “Blish principle”, a bogus physics theory, but in reality were blowback, open bolt submachine guns (the “Blish locks” would be removed in later models). Evidently, the Attorney General did not understand the difference either, responding that:

“They have special equipment to go into these machine guns. It is a highly specialized implement and ought not to be in the hands of any innocent person—I mean ought not to be in the hands of any person who is not properly entitled to have possession of it.” (pg 23)

The Attorney General’s apparent ignorance of basic firearm terminology aside, it is very interesting that he corrected himself from saying that no innocent person should ever possess a magazine for a machine gun. Perhaps he merely misspoke, perhaps it was a “Freudian slip”, to imply that mere possession of a folded piece of sheet metal removes the presumption of innocence, but his established contempt for the rights of Americans makes it difficult for any observer to give the benefit of the doubt. The phrase “highly specialized” is also incredibly suspect, as all magazines are fundamentally the same construction of an outer shell, spring, and lifter. This is complicated with niche items such as drum magazines, but the basic principle is the same. Furthermore, many pistols and non-automatic rifles have magazine compatibility with automatic weapons. Contemporary weapons such as the previously mentioned Lebman machine pistol shared magazines with any standard 1911, and in the current day, AR-15 or Glock magazine compatibility is common.

Hill proceeded to address once again the issue of which congressional powers the law utilized (regulation of interstate commerce and taxation). He also clarified that a criminal who illegally sold a firearm to an intrastate buyer that was manufactured out of state, this would be a violation of the taxing provision, not an interstate commerce matter. Also reiterated was the question of whether someone who possessed a handgun prior to the passage of the law would need to register it in order to transport it, and once again it was clarified that this would not be necessary so long as the individual was in compliance with all state and local laws. The congressman did however, raise a new question, namely how an individual would prove legal possession of a handgun in a state which does not require any permit. Attorney General Cummings assured that no federal officer would arrest such a person, but that the committee could alter the language to be more specific. He also said that someone could choose to get a permit, which would protect against arrest by a federal officer. Unfortunately, Congressman Hill specified that the purpose of this question was only to have it on the record in preparation for future inquiries, meaning that he was not actually concerned about innocent civilians being arrested who had committed no crime.

At the outset of the questioning by Congressman Hill, the Attorney General said that:

“…the law-abiding people of this country have got to be prepared to go to some inconvenience in dealing with these deadly weapons. The thing is not an irrational request to make of the honest citizen who wants the criminal class stamped out.” (pg 25)

The Attorney General had already stated repeatedly that this law would have absolutely no affect on criminals’ access to firearms. His statement presupposes that anyone who does not wish to pay an exorbitant tax and prostrate themselves before the federal government is not an “honest citizen”. Moreover, the term “deadly weapons” (as discussed earlier) is redundant as any weapon which is not deadly is useless as a weapon.

Clement C. Dickinson (MO-D)

The final question was on whether the term “person” included a firearms dealer, and the Attorney General clarified that it did, provided that the dealer was a partnership, company, association, corporation, or a natural person. This exchange was incredibly brief, but the Attorney General’s penultimate statement must be addressed: “‘The term ‘dealer’ shall include pawnbrokers and dealers in used firearms’. I would like to put those people out of business, if I could.” (pg 26) At the time of the hearing, the unemployment rate in America was a staggering 21.6% and the nation was in the midst of the worst economic crisis it had ever faced. While millions of Americans were homeless, hungry, and desperate for work, the Attorney General was hoping to close down even more businesses for the sole reason that they deal in used firearms. Bear in mind that used firearms would have been (and still are) the best and most accessible means for the poor to defend and feed themselves. It is almost unimaginable the contempt one must have towards the non-wealthy to think in such a way.

The Attorney General’s Memorandum

Much of what is contained in the memorandum filed by Attorney General Cummings was either already covered in the hearings. The memorandum also included a summary of The British Firearm Act of 1920, which imposed heavy restrictions on access to firearms and ammunition including registration and licensing. The following image condenses the chart already included in the memorandum, additional data which was included (but not on the chart), and additional analysis not included in the memorandum at all. The numbers which are featured for each country include both murder and manslaughter, or homicide and infanticide in the case of Italy. It is very difficult to compare statistics between countries on account of how definitions and means of collecting data vary. Moreover, manslaughter does not imply any intent to kill and can be applied somewhat more loosely, leading to even further confusion in the statistics. There is very little of practical use in the statistical analysis provided in the Attorney General’s memorandum.