The late 1920s and early 1930s brought, however, a growing perception of crime both as a major problem and as a national one.24 Public officials did much to support the perception; Attorney General Homer Cummings, for instance, publicly estimated that America was being terrorized by half a million armed thugs, a force larger than the contemporary United States Army.25 The mobility of the automobile enabled criminals, in those pre-police radio days, to move between jurisdictions before police units could generally be alerted; such criminal gangs found the submachinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for close-range fighting. The resulting quest for law enforcement solutions approached the incredible. At one 1933 hearing, for instance, a Senate subcommittee heard, with no recorded skepticism, calls for a ban on felons riding in automobiles, universal fingerprinting of all citizens, mandatory "papers" for interstate travel, and enactment of national vagrancy laws authorizing warrantless search and arrest of anyone "reputed" to "habitually violate" the laws (with law enforcement officials to testify as to the arrestee's reputation).26 On a more practical plane, [Page 591] the Department of Justice proposed what became the National Firearms Act of 1934. The constitutional basis for federal intervention, very much an issue in 1934,27 was resolved by patterning the firearm legislation after the Narcotic Drug Act of 1914.28 The Narcotic Drug Act used the taxing power to support distributor licensing, requirements that sales be accompanied by a "written order" preserved by the seller and subject to inspection, and a ban on interstate shipment by unlicensed persons. As the Narcotic Drug Act had survived legal challenge, albeit narrowly,29 it was consciously employed as a model for the new firearm legislation.30
What became the National Firearms Act was introduced as H.R. 9066.31 H.R. 9066 would have applied to any "firearm," [Page 592] a term defined to mean "a pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other firearm capable of being concealed on the person, a muffler or silencer therefor, or a machine gun."32 "Machine gun" was in turn defined as any weapon capable of firing twelve or more shots without manual reloading.33 All persons engaged in the business of selling such "firearms" were to register with the Collector of Internal Revenue; all sales were subject to a special tax and were to be made pursuant to a written order form. Absent payment of the tax, a firearm could not be shipped in interstate commerce; moreover, knowing possession of a firearm transferred in violation of these requirements was itself a crime.
During committee consideration, a substitute bill was prepared by the Justice Department. The substitute sought to fill a major gap in the original bill, which (consistent with its excise theme) would have applied only to firearms sold after its enactment.34 The substitute required existing "firearm" owners to register their arms within sixty days, except "with respect to any firearm acquired after the effective date of, and in conformity with the provisions of, this Act."35 This would still be premised on the taxing power: "it is important to be able to identify arms to see which possessors have paid taxes and which firearms have been taxed and which have not."36 The substitute also refined the definition of "firearm" to exclude .22 caliber pistols and to include rifles and shotguns alike if their barrels were under eighteen inches.
When ultimately reported out as H.R. 9741, the substitute embodied two additional and significant changes to the definition [Page 593] of "firearm."37 First, pistols and revolvers were omitted, so that the bill applied to machineguns, sawed-off shotguns and rifles, silencers, and concealable firearms other than pistols and revolvers.38 Second, the definition of "machinegun" was changed to cover firearms that fired more than once for each pull of the trigger, regardless of how many shots they might fire before reloading was necessary. The transfer tax on machineguns was fixed at $200, then about a 100% excise tax.39 While the Attorney General described the amended bill as little more than "a Federal Machine-gun act,"40 it had little difficulty securing enactment as the National Firearms Act of 1934.41
The National Firearms Act delayed, rather than defused, the drive for federal regulation of ordinary firearms and ammunition.
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