Featured Origins of the NFA Alexandria Kincaid July 18, 2017 Join the Conversation Making and Apprehending Criminals Through the Tax Laws A hand-processed, paper-intensive, firearm background check system that costs Americans millions of dollars annually to implement is no doubt an archaic way of doing business in the year 2017. But few, if any, people have ever suggested that government processes are the model of efficiency. Unfortunately, while change may be on the horizon, it’ll take much effort and many years to see improvement for the simple reason that far too many people still agree with the following statement: “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.” Testimony of Attorney General Homer Stille Cummings as recorded in National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. On Ways & Means, 73rd Cong 1 (1934) [NFA Hearing]. “Predatory criminals.” “A very serious national emergency.” “The armed underworld.” These dramatic emotion-provoking descriptions uttered by Attorney General Cummings in 1934 during the first few minutes of his Congressional testimony were designed to sway Congress into passing national gun control through America’s tax code. As the spokesperson for the Department of Justice, his focus on addressing crime by restricting and inconveniencing law-abiding Americans hardly differed from the gun-control rhetoric disgorged by today’s anti-gun politicians. In his effort to “sell it,” Cummings blatantly declared that law-abiding Americans needed to endure the inconvenience of the law to allow the government to deal with criminals. Without any substantiation, Cummings told his audience that twice as many people existed in the armed underworld as there were in the Army and the Navy combined. His proposed gun-control law imposed a mostly unaffordable tax on importers and manufacturers of firearms, dealers, machine guns, and most other firearms. Firearms excluded from the law were “ordinary shotguns or rifles.” It also created a national registration system that would easily allow the arrest, prosecution, and conviction of anyone in possession of a firearm without the proper paperwork. One difference between Cummings and modern gun-control advocates is that Cummings admitted that a ban on any particular firearms, including machine guns, would be unconstitutional. But, he claimed, Congress could tax firearms instead. He urged Congress to impose a 100-percent tax on machine guns. And that is, of course, ultimately what they did. The National Firearms Act (NFA) imposes a $200 tax on machine guns and other firearms (with a $5 tax on items classified as “any other weapons”). In 1934, when the NFA passed, this $200 tax was equal to the average cost of a machine gun. To set the stage for how much an imposition the tax was on Americans, keep in mind that according to the Bureau of Labor Statistics, in 1934, the average person earned $1,524 per year. Also for comparison’s sake, the average house in 1934 cost $5,970, and a Studebaker truck cost $625. This 100-percent tax was extremely prohibitive for the average American, equivalent to over $3,600 today, according to the U.S. Inflation Calculator. Due to the rise in crime that Prohibition and the Great Depression created, the laws to deal with their collateral damage quickly followed. Although the Volstead Act was repealed in 1933, the NFA was enacted in 1934. But what caused the most concern from this initial draft of the NFA for Second Amendment supporters wasn’t the misplaced blame on sawed-off shotguns and machine guns or the 100-percent tax. The bigger problem faced by Constitution-loving Americans was that the bill proposed a tax on, and a national registry for, the ordinary pistol and revolver. The initial NFA bill, H.R. 9066, defined “firearm” as “a pistol, revolver, shotgun having a barrel less than 16 inches in length, or any other firearm capable of being concealed on the person, a muffler or silencer therefor, or a machine gun.” By including pistols and revolvers, the NFA followed the trend of the time. Gone were the days of the 1700s and 1800s when the law required Americans to be armed. In the 1920s, other bills had already been proposed to restrict pistols from crossing state lines. Ironically, the argument in favor of one of these pistol-restricting bills was that homeowners could instead keep a “sawed-off shotgun,” which, according to Senator John K. Shields, a Democrat from Tennessee, was “far more deadly and surer than the pistol.” More handgun-restricting bills followed Senator Shields’s failed attempt. In 1930, several bills were proposed to restrict interstate commerce in pistols, revolvers, machine guns, and shotguns or rifles that had their barrels sawed off or shortened (without specifying a length). Firearms: Hearing on H.R. 2569, H.R. 3665, H.R. 6606, H.R. 6607, H.R. 8633, and H.R. 11325 Before a Subcommittee of the H. Comm. On Interstate & Foreign Commerce, 71st Cong. 1-3, 7 (1930). Clearly, H.R. 9066’s focus on pistols and revolvers was nothing new to Congress. But to date, the prior bills had failed. The old saying that laws are like sausages (no one should see them being made) held true in the makings of the NFA. The NRA and other opponents to the bill ultimately relented by accepting the tax on and registration of firearms, if pistols and revolvers were removed from the bill’s mandates. The compromised, restrictive NFA that gun owners live with today does very little, if anything, to deter crime, fails miserably as a revenue raiser, and costs Americans millions of dollars annually to implement. Keep in mind that the central idea of the initial draft of the NFA was to skirt the Constitution and Congress’s inability to enact a federal ban of firearms, and instead use Congress’s revenue-raising power and its power to regulate interstate commerce to tax and register almost all firearms (except non-concealable rifles and shotguns). This end-run around the limitation on Congress’s power and the Constitution was admitted repeatedly during the hearing. It’s interesting to note that H.R. 9066’s original definition of “firearm” failed to include items that ultimately wound up in the NFA as enacted. For example, the earlier bill didn’t include silencers for firearms not capable of being concealed on the person, such as for rifles or shotguns. It also didn’t include rifles with barrels under a certain length. Unnamed “experts” had purportedly been consulted about what the length of a “sawed-off shotgun” was, and reportedly, the bill was lenient in allowing barrels as short as 16 inches, because 18 or 20 inches was a “better maximum length.” The current law exemplifies the arbitrariness of what constitutes a “sawed-off” length, as it allows rifle barrels of 16 inches, but shotgun barrels must be 18 inches. H.R. 9066 also had what can only be described as a “FUBAR” definition of “machine gun,” which included both automatic and semi-automatic rifles if their magazines held 12 or more rounds. Gun Control Then and Now Not surprisingly, the authors of the initial gun-control bill were similar to today’s usual gun-control suspects — ignorant of firearms, their forms, and their functions. The bill was, like many gun control laws, a feel-good, emotional response on behalf of the ignorant to the crime problems of the time. In the NFA hearing, Karl T. Federick, President of the NRA, pointed out that the bill’s definition of “machine gun” was “wholly inadequate and unsatisfactory.” As mentioned, the proposed definition deemed a gun that fires automatically or semi-automatically more than 12 shots to be a machine gun. Frederick pointed out the distinguishing feature of a machine gun was not its magazine size, but its function upon a single pull of the trigger. During his testimony, one frustrated Congressman (Woodruff), in addressing Frederick, said “magazine or the clip or whatever they use to hold these cartridges.” If an image of Dianne Feinstein just crossed your mind, take a moment to delete it and read on. Despite not having any data, statistics, or even suggestion that these firearms were used in criminal activity (or that the tax would control the criminals), lawmakers advocated to add additional firearms that would be subject to the tax. For example, later in the bill’s hearing, Republican Harold Knutson from Minnesota suggested adding rifles with a barrel under 18 inches to the bill. There had been no suggestion that shorter rifles were a crime problem. Similarly, the record is completely devoid of any factual data that suppressors were used in criminal activity warranting any type of restriction, and no one bothered to bring this issue up. Criminals Will Still Get the Guns At the initial NFA Hearing, Adjt. General Milton A. Reckord, who was also vice president of the NRA, got directly to the point that the DOJ wasn’t approaching the crime problem properly. Reckord compared the law to the Volstead Act: “The honest citizens are not going to be bothered with such restrictions. They won’t obey the law, and you are going to legislate 15 million sportsmen into criminals; you are going to make criminals of them with the stroke of the President’s pen.” Both Major General Reckord and NRA President Frederick pointed out that any knowledgeable person knew that the criminals would still get guns, despite the new law. In fact, the famous gangster, John Dillinger, who was repeatedly mentioned during the hearing as a primary example for why the law was needed, stole his guns. Reckord and Frederick suggested that the correct solution would be for the government to focus on punishing criminals with guns. Gangsters like John Dillinger were mentioned by name at the NFA hearings as a method of justifying its necessity. The bottom line is that no one, not even the Attorney General, expected the criminals to comply. In agreeing that the criminals would not obey the law, Cummings argued that the bill was designed to make it easy to convict criminals for their noncompliance with the tax code — if a suspect has a machine gun and no paperwork, they could be prosecuted. He cited the arrest, prosecution, and conviction of Al Capone as an example of a known, violent, and slippery criminal who was apprehended because of the income-tax law that he violated. The attorney general’s goal, and his logic, was that this new tax law would similarly help law enforcement apprehend the John Dillingers of the time for violating the tax code rather than any of their violent criminal activity. Many of the arguments against the NFA were similar to the arguments made by Second Amendment supporters today: gun control doesn’t affect criminals. Automobiles cause more deaths than firearms. Handgun owners with concealed-carry permits are law-abiding citizens, and crime will increase if you take guns away from them. Frederick also made the point that police forces in rural communities are inadequate, and the law would prevent people in smaller communities from obtaining weapons needed for self-defense. Those in favor of the new law replied that people don’t need pistols for self-defense, just rifles or shotguns, and the Committee Chairman claimed that he had “never heard” of anyone needing a pistol for self-defense. Frederick pointedly stated that, “I do not think we should burn down the barn in order to destroy the rats. I am in favor of some more skillful method of getting the rats without destroying the barn.” He reiterated that gun-control laws don’t reach the “crook” at all, just the honest man. To support his position, and to combat the suggestion that people don’t use firearms lawfully for self-protection, Frederick had compiled and provided newspaper articles on law-abiding citizens using firearms in self-defense. His arguments, of course, had factual support, unlike the purely emotional arguments in favor of the bill. What About the Second Amendment? Not everyone was willing to accept an end-run around the Second Amendment to apprehend violent criminals for non-violent behavior. Some even saw the danger of criminalizing law-abiding Americans who simply didn’t have the correct paperwork. Rep. David J. Lewis of Maryland commented on what was to him a blatant attempt to violate the Second Amendment. He stated that he “never quite understood how the [gun control] laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.” Cummings responded to Lewis that, “We are dealing with another power, namely, the power of taxation and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say ‘We will tax the machine gun’ and when you say that ‘the absence of a license without payment of the tax has been made indicates that a crime has been perpetrated,’ you are easily within the law.” Cummings’s logic was simple: No prohibition of firearms was proposed, just regulation and criminal prosecution for those who did not comply. Dealers and Manufacturers The proposed law would not tax only the purchasers (transferees) of the NFA-defined firearms, but the dealers and manufacturers as well. One Congressman put on the record that he would like to put pawn-brokers and dealers in used firearms (“those people,” in his words) out of business, if he could. Interestingly, W.B. Ryan, president of Auto Ordnance Co., manufacturer of the Thompson submachine guns, spoke in support of the NFA. When NRA President Frederick spoke to the issue of taxing dealers, he pointed out that an annual dealer tax of $200 would eliminate 95 percent of the dealers in pistols. Similarly, the proposed $5,000 tax on manufacturers was much too high for any smaller companies to pay. Merchants and law-abiding citizens continue to bear the burden of outdated, costly, and unnecessary legislation. Modern NFA After the initial hearing on H.R. 9066, a modified version of the NFA was proposed in June of 1934, H.B. 9741. This is the bill that was ultimately passed and enacted as the National Firearms Act. Representative Robert Lee Doughton, a Democrat from North Carolina, introduced this bill. It passed the House and Senate and was signed into law by President Roosevelt all in the same month. It was, as suggested in the final hearing by Rep. Doughton, a law that was supposed to no longer put the citizenry at the “mercy of the gangsters, racketeers, and professional criminals.” He touted that the bill no longer affected pistols and revolvers, so that “law-abiding citizens who feel that a pistol or a revolver is essential in his home for the protection of himself and his family should not be classed with criminals, racketeers, and gangsters, should not be compelled to register his firearms and have his fingerprints taken and be placed in the same class with gangsters, racketeers, and those who are known as criminals.” Congressional Record, 73rd Congress, June 13, 1934, 11400. The NFA, as enacted, defined “firearm” as “a shotgun or rifle having a barrel of less than 18 inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition.” Since 1934, this definition has been revised and expanded through additional laws, such as the Firearm Owners Protection Act, as well as through the ATF’s interpretations of the statute (such as the ongoing “Sig Brace” conundrum). Suffice it to say that the NFA’s definition of firearm is a living, breathing beast that has not yet been slain. Why are these particular firearms subject to the tax code and registration? Because in the eyes of the 73rd Congress, they were the firearms used by the criminals whom law enforcement were somehow unable to apprehend any other way. Although the current NFA remains a gun control law written in a tax code (found in Title 26, United States Code section 5801 et. seq., which is the Internal Revenue Code and enforced by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, formerly under the Department of the Treasury, but now overseen by the Department of Justice), it carries hefty criminal penalties. As intended, the law allows the apprehension and prosecution of those who don’t pay the tax or who otherwise fail to comply with the registration (paperwork) requirements. As predicted by Major General Reckord, it’s a pitfall for unsuspecting gun owners who can easily and unknowingly violate the NFA and commit an accidental felony. While this “tax code” was touted as a law that wouldn’t place law-abiding Americans in the same class as criminals, it in fact does. Given our modern technology and the later passage of the Gun Control Act (which requires modern, computerized background checks), we should continue the effort to eliminate this costly and unnecessary piece of legislation. About the Author Alex Kincaid is a former elected district attorney and current firearms law attorney with over 19 years experience. She is an active proponent of the Second Amendment, a legal analyst, and author. Alex hosts an online show highlighting current firearms law-related news called The AK Show. www.alexkincaid.com Explore RECOILweb:Gutter Ball: EAA Imports a Turkish Take on an Iconic American Carry GunDesert Tech TRASOL Ballistic AppThe first truly modular rifle?MasterPiece Arms at Woody's Fall Brawl PRS Match NEXT STEP: Download Your Free Target Pack from RECOILFor years, RECOIL magazine has treated its readers to a full-size (sometimes full color!) shooting target tucked into each big issue. 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