THE FIREARMS OWNERS' PROTECTION ACT:

A HISTORICAL AND LEGAL PERSPECTIVE

DAVID T. HARDY*

17 Cumberland Law Review 585 (1986)

[Ed. note: this article has been cited as authority in Staples v. United States, 62 USLW 4379, 4387 n.4 (U.S. Sup. Ct. 1994) (Stevens, J.,dissenting); U.S. v. Sherbondy, 865 F.2d 996, 1002 (9th Cir. 1988); U. S. v. Cassidy, 899 F.2d 543, 546 n.8 (6th Cir. 1990); United States v . Otiaba, 862 F.Supp. 251,253 (D.N.D. 1994) (declining to follow circuit decision "as that court did not have available to it Hardy's analysis of the legislative history"); Cisewski v. Dep't of Treasury, 773 F.Supp. 148, 150 (E.D. Wisc. 1991); and In re Two Seized Firearms, 127 N.J. 84, 602 A.2d 728, 731 (1992).]

Summary: The 1986 Amendments to the Gun Control Act were the result of a nearly-unparalleled legislative battle. A thorough understanding of the amendments is critical to a compehension of Federal firearms laws as they now exist, since they effectively overruled decades of caselaw which construed the 1968 Act. Among the changes were elevations of the intent which must be proven to establish a violation (pp. 646 ff), a narrowed definition of who must obtain a dealer's license (pp.628 ff), restrictions on unreasonable search, seizure, and forfeiture (pp. 653 ff) , and provisions for recovery of attorney's fees in civil and even criminal cases (pp. 662 ff).

[page 585]

INTRODUCTION

On May 19, 1986, the Firearms Owners' Protection Act (FOPA) was signed into law.1 The first comprehensive redraft of the federal firearm laws since 1968,2 FOPA was predictably lauded as "necessary to restore fundamental fairness and clarity to our Nation's firearms laws"3 and damned as an "almost monstrous idea" and a "national disgrace."4 The controversy was not limited to the rhetorical. Seven years passed between FOPA's introduction and its Senate vote;5 the House vote required passage of a discharge petition6 -- only the eighth to succeed in the last twenty-six years.7

The controversy surrounding FOPA's genesis is commensurate to the legal impact of its provisions. FOPA effectively overrules six decisions of the United States Supreme Court,8 [page 586] moots what would have become a seventh,9 and negates perhaps one-third of the total caselaw construing the Gun Control [Page 587] Act of 1968.10 FOPA's impact, however, is not limited to the Gun Control Act, nor even to federal statutes. By expressly exempting interstate transportation of firearms from the reach of many state firearm laws,11 it affects state proceedings as well. A detailed comprehension of FOPA is thus essential to an understanding of both federal and state firearm laws.

[Page 588]Unfortunately, such a comprehension is not easily achieved. FOPA reflects not a simple, single legislative decision, but a complex series of compromises, many of which are only partially reflected in the record.12 Even where the record is complete, it is rarely clear. The House bill that ultimately became FOPA is supported by a report, but the report explains not why FOPA should have been adopted, but rather, why it ought to have been rejected.13 The House bill's predecessor and Senate counterpart, S. 49, was never referred to committee and went instead to the floor with no report whatsoever.14 S. 49's ancestors were the subject of two reports15 which, unfortunately, are in hopeless conflict in certain aspects.16 To add to its original complexity, FOPA was, prior to its effective date, amended by a second enactment17 which was in turn modified by a concurrent resolution.18 The need for a comprehensive review of this [Page 589] controversial and convoluted legislation is thus clear.19 The statute's core can be found in the real consistencies obscured by seeming chaos.

The purpose of this Article is to examine the Firearms Owners' Protection Act in both historic and legal perspectives. Accordingly, the Article first examines the framework of federal firearm legislation as it evolved prior to FOPA. Then, the seven-year evolution of FOPA itself is analyzed. Finally, this Article evaluates the nature of the more significant changes embodied in this controversial enactment.

I. BACKGROUND TO FOPA: PRE-1986 FEDERAL FIREARMS LAWS

A. Nationalization of Firearm Regulation: The National Firearms Act of 1934 and Federal Firearms Act of 1938

Firearms and weapons control statutes are by no means a legislative novelty. The first American handgun ban was enacted in 1837,20 restrictions on sale or carrying of handguns were commonplace by the turn of the century,21 and the National Conference of Commissioners on Uniform State Laws spent seven years in the 1920s preparing a uniform state act on the subject.22 Nonetheless, prior to 1934, the sole federal [Page 590] statute on the subject was a 1927 ban on use of the mails to ship firearms concealable on the person.23

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. In the Seventy third Congress, Senator Royal S. Copeland introduced a bill proposing a "Federal Firearms Act."42 The bill, which had a number of doubtful features,43 died in committee. Copeland permitted an ad hoc committee of staff, National Rifle Association representatives, and Department of Justice representatives to prepare an improved draft.44 Early in the Seventy-fourth Congress, Copeland [Page 594] (noting, "I am always amazed when people agree"45) introduced the result as S. 3.46

S. 3 was based squarely upon the interstate commerce clause.47 It would have required any "dealer" (defined as "any person engaged in the business of selling firearms" or repairing them) to obtain a one dollar license from the Secretary of Commerce before transporting, shipping, or receiving any firearm in interstate or foreign commerce. The license could be revoked upon criminal conviction for any violation of the bill. Licensed dealers were required to keep records of sales and were forbidden to ship firearms in interstate commerce to persons under indictment for or convicted of a crime of violence, or who lacked any permit required by the laws of the state of destination. S. 3 would also have repealed the National Firearms Act of 1934, substituting in its stead a general ban on interstate shipment or transportation of machineguns. The Department of Justice objected to this last provision, and it was deleted in committee.48

S. 3 passed the Senate, after floor amendments whose primary effect was to require proof of a "knowing" state of mind.49 It died in the House with the adjournment of the Seventy-fourth Congress. Copeland reintroduced the measure, incorporating the Senate floor amendments, in the Seventy-fifth Congress, once again as S. 3.50 After assurances that the measure was supported by firearms groups, Copeland secured speedy passage by voice vote.51 The House passed S. 3 with amendments, primarily changing the administering agency from Commerce to Treasury.52 The Senate concurred in the House amendments, and the Federal Firearms Act of 1938 became law.53 The 1934 and 1938 Acts [Page 595] comprised the substance of federal firearms law for the next three decades.

B. Expansion of National Firearms Laws:The Gun Control Act of 1968

The National Firearms Act and Federal Firearms Act formed the backdrop for the next major federal firearms legislation, the two statutes known collectively as the Gun Control Act of 1968.54 As is often the case, the dry legal history of that Act covers a complex legislative reality. The byzantine origins of the Gun Control Act are foreshadowed by the career of its prime sponsor, Senator Thomas Dodd. A staunch conservative55 who kept a pistol in his desk and once tried to carry it onto the Senate floor,56 Dodd came from a state that was the center of the American firearms industry.57 In later years, this apparent paradox was explained -- and another created -- by the revelation that the early forms of the Gun Control Act were drafted with the assistance and encouragement of firearms manufacturers.58

[Page 596] In the postwar years, domestic firearms manufacturers encountered heavy competition from home hobbyists who converted inexpensive imported military arms into hunting and target rifles.59 "Mail order houses" imported such arms for a pittance and resold them to a national market. Domestic arms manufacturers saw their sporting markets undercut and began pressing for protective measures. Protests to the State and Defense Departments over issuance of surplus import licenses yielded little result.60 The industry then sought a legislative remedy and in 1958 secured passage in the House of a rider to the Mutual Security Act that would have barred virtually all surplus arms imports.61 The National Rifle Association took issue with the manufacturers and strongly opposed the amendment.62 The Senate, citing possible violations of the General Agreement on Trades and Tariffs, limited the restriction to reimportations of American arms,63 a restriction which prevailed in conference.64

After this failure, the firearms manufacturers approached Senator Dodd, with arguments and suitable tribute.65 [Page 597] Dodd's original effort, S. 1975, was introduced in August 1963 and had extremely limited scope. S. 1975 would have required mail-order purchasers of handguns to provide the seller with notarized affirmations that they met certain age and other requirements. In November and December, Dodd proposed amendments that would have applied to rifles and shotguns as well and would have required certification by the chief law enforcement officer of the purchaser's jurisdiction.66

Neither the original bill nor its successors were reported out of committee during the Eighty-ninth Congress. In part, this may have been due to Dodd's dilatory approach to legislation.67 The Ninetieth Congress was a different story. On the one hand, Dodd was no longer in real control, as censure proceedings steadily undermined his standing.68 On the other, the Johnson Administration advocated stricter firearms control with increasing vigor.69 As the session began, Dodd introduced S. 1, which he quickly supplemented with Amendment 90.70 S. 1-90 would have supplanted the Federal Firearms Act: since S. 1-90 essentially laid the foundations of the Gun Control Act, its major provisions merit examination.

Prohibited Persons

S. 1-90 would have barred firearms receipt by fugitives [Page 598] from justice and persons under indictment for, or convicted of, a crime punishable by imprisonment exceeding one year, a term defined to exclude antitrust, unfair trade, and similar infractions. These provisions were, in the main, borrowed from the Federal Firearms Act, which, however, applied this bar only to sales in interstate commerce.71 S. 1-90 would have allowed persons convicted of such violations -- other than violations of the federal firearms laws -- to apply for an administrative "relief from disabilities," by which Treasury, upon proof of good character, might restore the right to own or deal in firearms. The latter provision was taken from a 1965 amendment to the Federal Firearms Act,72 sponsored by Dodd to deal with the problems of a firearms manufacturer.73 Additionally, under S. 1-90, dealers would have been barred from selling rifles or shotguns to persons under eighteen years of age, or any other firearms to persons under twenty-one years of age, and they would have been generally forbidden to sell any firearm to those whom they knew or should have known "could not lawfully purchase or possess in accord with applicable laws, regulations or ordinances of the State" or locality in which the transferee resided.74

Dealer Licensing

S. 1-90 would have required persons "engaged in the business" of firearms dealing to obtain licenses. This was an expansion of the Federal Firearms Act, which required licensing only if the person "engaged in the business" and [Page 599] shipped or received firearms in interstate commerce. While the Federal Firearms Act licenses were issued upon request, and revoked only upon criminal conviction, S. 1-90 provided that the Secretary "may" issue such licenses and must deny them if the applicant was "by reason of his business experience, financial standing, or trade connections, not likely to commence business operations." Persons who had willfully violated the Act or who lacked "business premises'" were likewise denied a license. Dealers were obliged to maintain records fixed by regulation, and their premises were open to inspection at will during business hours.

Interstate Sales

The Federal Firearms Act barred interstate sales between nonprohibited persons only when the buyer's state required, and the buyer lacked, a license to purchase. S. 1-90 drew a line between "long arms" (shotguns and rifles) and other firearms (primarily handguns). Persons who were not licensed dealers could purchase handguns only in their state of residence. Residents of different states could sell each other rifles and shotguns so long as the receipt did not violate state or local law at the buyer's place of residence. Dealer "mail order sales" of any firearms were barred by a provision barring a licensee from shipping firearms or ammunition to a nonlicensee in interstate commerce.

National Firearms Act Weapons

The National Firearms Act required licensing of all machineguns, silencers, and short-barrelled rifles and shotguns. S. 1-90 would have imposed similar restrictions on "destructive devices," including bombs, grenades, and firearms with a bore over .50 caliber. Sales of National Firearms Act weapons and destructive devices by a licensed dealer required an affidavit of approval from the chief law enforcement officer of the purchaser's jurisdiction, and interstate transportation of such arms would have required approval by the Secretary.

Importation

S. 1-90 would have barred firearms imports subject to a few exceptions, the most important being rifles, shotguns, [Page 600] and nonmilitary handguns "generally recognized as suitable for or readily adaptable to sporting purposes."

The day before S. 1-90's introduction, Senator McClellan introduced S. 917, "The Safe Streets and Crime Control Act of 1967."75 In committee, the bill was renamed "The Omnibus Crime Control and Safe Streets Act of 1967" and a new Title IV, dealing with firearms, was added.76 Title IV tracked S. 1-90 in all but a few details; it did not, for example, prohibit mail order sale of rifles and shotguns, nor place minimum age limits on their purchasers. After lengthy debate, the Senate passed S. 917 with several amendments. One amended the exemption for "antique" firearms, which were not subject to the Act, advancing the cut off date to 1898 from the committee's 1870 cut-off.77 A second changed the prohibition on dealer's sales in violation of state or local law or ordinance. Under the amendment, the dealer's obligation was to avoid sales barred by state law or a "published ordinance," the latter being one determined by the Secretary of the Treasury (the Secretary) to be relevant to purposes of the Act and so published in the Federal Register.78

A third amendment was more significant and, regrettably, less well thought out.79 It amended S. 917 to add a new title VII, which prohibited certain persons not only from receiving, but also from possessing firearms.80 The list of prohibited persons did not, however, tally with that in Title IV. To Title IV's list of convicted felons and fugitives from justice, Title VII added persons given a dishonorable discharge81 by the military, those judicially adjudged "mentally incompetent," those who had renounced U.S. citizenship, those who were aliens unlawfully within the U.S., or those who were acting in the course of employment of any of the other classes. Nor did the discrepancy end there: Title IV had defined a felon as one convicted of a crime punishable by more than one year's imprisonment, excluding certain business-related offenses, while Title VII simply used the term "felony." Title IV excepted from this class a person given "relief from disability"; Title VII excepted a person pardoned and "expressly authorized" to own firearms.82 The Senate substituted S. 917, with these amendments, for the House-passed version of the bill,83 and the House accepted the Senate version.84 Thus did Titles IV and VII become law.85

Even before their enactment, however, it become apparent that these would not be the only gun controls enacted in 1968. During the Senate consideration, the United States Supreme Court struck down the machinegun registration provisions of the National Firearms Act, necessitating a redrafting of that statute.86 In April x1968, while S. 917 was in Senate committee consideration, Rev. Martin Luther King [Page 602] was murdered by a sniper. The day before the House vote, Robert F. Kennedy was killed. The day of the House vote, President Johnson publicly denounced S. 917 as a "half-way measure" that "leaves the deadly commerce in lethal shotguns and rifles without effective control,"87 and the chairman of the House Judiciary Committee announced plans to introduce a new bill.88

The new bill, H.R. 17735, was indeed introduced on June 10, 1968; a move to report it out of Judiciary Committee the following day failed on a tie vote.89 As originally introduced, the main change worked by the bill would have been to ban sales of rifles and shotguns to nonresidents of the seller's state, to eliminate their sale by mail order and impose a minimum age of eighteen for their purchase from a dealer, to increase controls on handgun ammunition transfers and sales, and to redraft the National Firearms Act to avoid the fifth amendment flaw.90 Breaking the tie in committee required addition of several amendments. Chief among these were two narrow exemptions from the interstate transfer ban,91 and a major narrowing of the Secretary's power to deny a dealer's license.92 Under the latter amendment, the Secretary was required, not merely authorized, to license a qualified individual within forty-five days of application; any denial was subject to de novo review in district court; and the applicant was no longer required to demonstrate trade connections proving his entrance into business within the license period.93 The committee amendments would also have expanded Title IV's list of "prohibited persons" to include any person adjudicated "a mental defective" or judicially committed to a mental institution, and persons unlawfully using or addicted to certain drugs.94 Unfortunately, no effort was made to coordinate these [Page 603] with the list of Title VII "prohibited persons."95 On the House floor, the committee amendments were immediately accepted by voice vote without debate.96 Over the course of the floor debates, other amendments were adopted: a class of "licensed collectors" was added, with power to purchase curio and relic firearms interstate;97 importation of all military surplus arms, not just handguns, was banned;98 an additional penalty (mandatory only upon second offense) for use or illegal carrying of a gun in a federal crime was added;99 and Title IV's reference to "published ordinances," dropped by the committee in favor of "local law," was restored.100

The Senate substituted the text of a similar bill, S. 3633,101 but the House bill prevailed in conference.102 The [Page 603] resulting legislation, under the now-familiar name of "The Gun Control Act of 1968," supplanted both the earlier enactment of Titles IV and VII and large portions of the National Firearms Act.103

II. ENACTMENT OF THE FIREARMS OWNERS' PROTECTION ACT

One of the last House amendments to the Gun Control Act added section 101, declaring that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms."104 Enacting FOPA nearly two decades later, the Congress expressly found that "additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act."105 Between the two statements lay eighteen years of experience and a seven-year legislative gestation period whose intricacies rivaled those of the Gun Control Act itself.

Enforcement of the Gun Control Act was initially delegated to the Alcohol and Tobacco Tax Division of the Internal Revenue Service, which had previously enforced the National Firearms Act and Federal Firearms Act.106 In 1969, this agency became the Alcohol, Tobacco, and Firearms Division; three years later it achieved full bureau status as the Bureau of Alcohol, Tobacco and Firearms (BATF).107 To the stresses of growth was added the virtual collapse of BATF's traditional duties of enforcing the alcohol taxes.108 Almost forty percent of BATF's manpower [Page 605] was directed at a law enforcement problem that had all but vanished.109 The agency response was a series of heavily publicized projects to demonstrate a potential for firearms operations.110 Agents and supervisors were implicitly or explicitly assigned quotas and older agents were increasingly replaced with younger, more zealous operatives.111 Pressure for results, coupled with extremely loose control,112 led to stringent enforcement of the Gun Control Act's provisions.113

This was hardly the first time a statute with broad enforcement powers had been pushed to the limit but BATF's victims were typically appealing citizens114 and were [Page 606] represented by relatively well connected organizations.115 Even so, the opening skirmish came not over law enforcement, but over the Gun Control Act's creation of a secretarial power to require submission of reports by licensees. BATF's attempt to use this power to require manufacturers, importers, and wholesalers to report firearm transfers for agency data processing116 led to a credibility-damaging legislative fight and prohibitory riders on Treasury appropriations.117

The serious conflict soon followed. Beginning in early 1979, Senate hearings publicized a number of cases of serious abuses of enforcement powers.118 This documentation [Page 607] was later cited as the empirical foundation of FOPA.119 Within months of the first hearing, the earliest versions of FOPA were introduced in both House and Senate.120 These versions proposed extensive amendment of the Gun Control Act. Their main provisions may be summarized as follows:

Dealer Licensing

A dealer's license would be required of anyone "whose time, attention and labor is occupied by dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of an inventory or [sic] firearms."121 Persons making occasional sales or selling all or part of a "personal collection" were expressly excluded.

Interstate Sales

Sales to nonresidents by dealers and nondealers alike would be allowed unless receipt of the firearm by the purchaser "would be in violation of any published ordinance or law of the state or locality where such person resides."122

Prohibited Persons

Inconsistencies between Title VII and Title IV [Page 608] prohibitions would be resolved by repealing Title VII and merging its prohibited person classes with those of Title IV. The result would be a single set of provisions barring possession or receipt by, and sale or transfer (by dealer and nondealer alike) to a list of prohibited classes. The bar on possession by felons would be narrowed to those convicted of certain "disabling crimes" defined as violations of twenty-three chapters of the United States Code "or any similar crime." Persons under indictment were not included within the proscription, nor were persons with convictions "set aside or expunged."

Enforcement

Criminal prosecution would require proof of a willful violation. Forfeiture would require conviction; any verdict other than guilty, or failure to prosecute within 120 days of seizure, would require return of the seized property. Only firearms named and "individually identified" as involved in or used in (not "intended" to be used in) a willful violation would be subject to forfeiture. License revocation would be barred if criminal charges were filed and the licensee was not convicted. Attorneys' fees "shall" be allowed to victorious claimants in forfeiture actions and "may" be allowed in other actions in which the court finds charges were without foundation, or brought vexatiously, frivolously or in bad faith.

Records

Warrantless inspection of the premises of a licensee would be allowed only when reasonable grounds existed to believe evidence of a violation of the chapter might be found.

Rulemaking

A minimum of ninety days' public notice would be required; "One House Veto" provisions were established. No rule could require records to be transferred to a federal or state facility, or establish a system of firearm registration.

Mandatory Sentencing

The Gun Control Act's additional sentence (technically, an additional offense) for use or unlawful carrying of a firearm [Page 609] in a federal crime would be made mandatory on first offense, rather than on second.

Interstate Transportation

Any state law or regulation prohibiting the transfer of a firearm in interstate commerce through the state "provided that the firearm is unloaded and not readily accessible"123 would be rendered null and void.

These original forms of FOPA saw no legislative action in the Ninety-sixth Congress. A successor, S. 1030, was introduced in the Ninety-seventh Congress.124 S. 1030 as introduced contained several significant changes from S. 1862. First, S. 1030 added a prefatory statement of purpose, citing the objective of protecting individual rights under the second, fourth, fifth, ninth and tenth amendments along with rights granted under the Privacy Act, and adding a finding that the purposes of the Gun Control Act had been thwarted by harassment of law abiding citizens.125 A second, substantive change completely restructured treatment of "prohibited persons." S. 1862's attempt to define specific "disabling" offenses was dropped, and the Gun Control Act's broad inclusion of nonbusiness felonies was retained, together with its bar on receipt (but not possession) by those under indictment.126 In exchange, the scope of administrative relief from disability was expanded. Such relief was made available to any "prohibited person," thus making it available to those barred by reasons other than a conviction and to those whose convictions were for Gun Control Act and National Firearms Act violations. The Secretary was to grant such relief, unless his investigation indicated that the person was likely to violate the law or endanger the [Page 610] public safety, and a denial could be reviewed de novo in the district court.127 A second major change came in the forfeiture section. Criminal conviction would no longer be a prerequisite for forfeiture, but in return forfeitures were limited to willful violations and an acquittal or dismissal of the owner on criminal charges barred forfeiture on those allegations.128 S. 1030 also added a recognition that a licensed dealer might maintain a firearm collection separate and apart from his inventory.129 Interstate sales, on the other hand, were required to conform not only with the laws of buyer's place of residence, but also with those of the seller's.

Many of these changes bear the appearance of a quid pro quo. This is not without reason; most grew out of the early stages of negotiation between the National Rifle Association (NRA), the main private supporter of the bill, and Treasury Department (Treasury) officials, and were in fact based upon detailed bargaining and exchanges.130 These meetings continued over the year that passed between S. 1030's introduction and its committee markup.

The Judiciary Committee, following that markup, reported out an amendment by way of substitute which incorporated several amendments negotiated in these meetings.131 The more important barred mail-order [Page 611] interstate sales, even if they complied with state law; provided that a dealer making an interstate sale would be presumed to know the laws of the purchaser's jurisdiction; recognized that the dealer's power to "maintain" a private collection also went to "disposing" of it (and in return required that he record sale of any firearm transferred from his inventory into his collection within the preceding year); and allowed license revocation or firearms forfeiture following dismissal of criminal charges (but only if voluntarily dismissed, prior to trial).132 Other amendments deleted the one-house veto,133 and removed the de novo aspect of review of a denial of relief from disability, but permitted the court to consider additional evidence if necessary to avoid a miscarriage of justice. A final set of changes allowed certain warrantless inspections of licensee premises, but required not only probable cause but also a magistrate's warrant for the remainder.134

S. 1030, as amended, died in the Ninety-seventh Congress.135 In the Ninety-eighth Congress, the bill was reintroduced as S. 914.136 Again, the bill was held at full committee; hearings were held in October 1983.137 After four markup sessions, the bill was extensively amended and reported out in August 1984.138 When the majority leader [Page 612] failed to schedule a floor vote, a version of S. 914 was tacked onto a vital appropriations resolution over his objection.139 Where exhortation failed, extortion succeeded. The amendment was tabled only after a commitment to expedite the bill in the next Congress.140 The following January a substitute bill, S. 49, was introduced by the new majority leader, Senator Robert Dole, and held at the chair.141 On July 9, after several amendments and one day of debate, S. 49 passed the Senate by a 79-15 vote.142

The official votes and amendments inevitably shed some light on the structured chaos of the legislative process. They fail, however, to illuminate the real process that governed the evolution of the bill. To understand that process requires us to further trace the course of the negotiations between the Treasury Department and the National Rifle Association. These negotiations had, as noted above, affected the composition of S. 1030. They became the crucial determinant of the composition of S. 914 and S. 49.

The most important of these negotiations occurred during January and February of 1983, as Treasury and NRA exchanged drafts and comment.143 The results of these negotiations formed the basis of the Reagan Administration [Page 613] amendments proposed during the hearings144 and, thereafter, adopted by the committee.145 The amendments touched almost every major aspect of the bill:

Dealer Licensing

Treasury had, during the 1981 negotiations, unsuccessfully sought deletion of the word "principal," so that the licensing obligations would extend to anyone who sold firearms with a purpose of profit and livelihood.146 In 1983, Treasury renewed its quest, arguing that deletion would make "it clear that part-time businesses are included within the definition."147 In place of this, both parties agreed to accept an added definition of "with the principal objective of livelihood and profit" that made it clear that a preponderant profit motive was necessary, but that firearm dealing need not be the seller's primary source of income.148 Treasury's [Page 614] parallel proposal to change "livelihood and profit" to "livelihood or profit" met with no success.149 The additional definition was incorporated into the Reagan Administration amendments150 and into S. 49.151

Interstate Transfers

The complex problem of interstate sales was not resolved at the 1981 negotiations.152 In the 1983 negotiations, Treasury initially sought to allow interstate sales of only rifles and shotguns and only where the purchaser's state had by legislation allowed such purchase.153 The NRA's counteroffer would have applied this principle to sales by nonlicensees only and maintained the S. 1030 approach for sales by licensed dealers.154 Ultimately, the Reagan Administration amendments simply allowed only licensees to sell to nonresidents, so long as the sale complied with the laws of both states.155

Prohibited Persons

There was no difference of opinion between the parties on the advisability of consolidating all "prohibited persons" classes into a single provision.156 Some difference did arise over the exception for persons pardoned or whose convictions [Page 615] had been expunged. This was resolved by adding a proviso that the exception did not apply where the pardon or expungement order provided that the recipient might not own firearms.157 This provision was incorporated in S. 914 as introduced.158

Enforcement

As might be expected, the details of the enforcement powers were extensively discussed during the negotiations. The January 1983 Treasury proposals sought to strike insertion of the word "willfully" in the penalties clause of the bill, noting:

The requirement that only a willful violation of the Act's provision[s] would be a criminal offense would make knowledge ... of the law an element of the offense. Consequently, this new element would make it difficult, if not impossible, to successfully prosecute any case under the Act. For example, in the absence of evidence that the defendant had specific knowledge that his conduct violated Federal law, he would not violate the Act by receiving or possessing a firearm as a felon....159

An apparent deadlock was broken by suggestion that some offenses be made to require proof of a "knowing" state of mind, while others would require proof of a "willful" violation.160 At the January meeting, it was suggested that violations of 18 U.S.C. sections 922(g), (h), (i) or (j) require only [Page 615] "knowing" violation: these barred sales to or receipt by prohibited persons and transportation or receipt of stolen firearms.161 The NRA's explanation, referring to Treasury's January objections, noted:

[O]bjection was that this would require proof of knowledge of law for offenses such as receipt of stolen guns, possession by felon, etc. This draft requires only "knowing" violation of those sections, and "willful" for the rest. (Sections relating to transportation with intent to use in a crime and use in a federal crime are not affected by this section, 924(a) in any event, since their intent and punishment is separately set out in 924(b) and (c)).162

The knowing-willful dichotomy was adopted in Treasury's February 1983 proposal, albeit with a suggestion that the "knowing" category be expanded,163 and ended in a compromise164 embodied in the Reagan Administration amendments.165 As it turned out, Senator McClure, sponsor of S. 914, was less than happy with the Reagan Administration proposals. Concerned that a "knowing" standard might allow prosecution for negligent violations, McClure demanded and received an amendment in committee that expressly precluded prosecution for "simple negligence."166

The issue of license revocation or property forfeiture following criminal proceedings proved less complex. As early as the December 1981 meeting, alternative structures had been explored.167 These were largely incorporated in S. 914 as introduced, alleviating need for their discussion during the 1983 meetings.168 S. 914's restriction of forfeiture to firearms "involved in or used in," and exclusion of firearms allegedly "intended to be used in," was more difficult to resolve. At length, it was dealt with by requiring that claims of "intent to be used" be proven by clear and convincing evidence.169 This proposal also became part of the Reagan Administration amendments.170 Thus, by careful drafting of intermediate positions, it became possible for Treasury and NRA to protect their more vital interests even where those interests appeared most violently at odds.

Records

Resolving the issue of when and on what conditions dealers' records might be inspected without a warrant did not require as much imagination. The NRA's core concern had been to prevent the use of inspections to harass dealers or to drum up technical cases by "fishing expeditions."171 It was agreed early that inspection without cause might be allowed for inquiries in the course of investigating third [Page 618] parties or as narrowly limited "courtesy inspections," to point out errors without imposition of sanctions.172 S. 1030, as reported, incorporated these exceptions, with relevant conditions, and added a third. Warrantless inspection would be allowed: (1) in the course of third party investigations; (2) no more than once every twelve months, upon reasonable notice, with no criminal charges to result, except for sale to a prohibited person; and (3) when necessary for tracing a particular firearm in the course of a bona fide criminal investigation.173 Subsequently, pointing out that a failure to keep records might make it impossible to show whether purchasers were prohibited persons, Treasury sought clearance under the annual inspection exception to prosecute for willful violations of the recordkeeping requirements.174 This provision was incorporated in S. 914.175

Regulations

Resolution of limitations on the power to require submission of licensee records would seem a simple task. The parties could agree on the substance; NRA wanted a secure bar against any renewal of the 1978 attempt to achieve firearm [Page 619] registration through this power, or anything vaguely resembling that attempt, while Treasury wanted to preserve its existing regulations. Those regulations required dealers to submit their records if they went out of business,176 to report sales if requested by the Secretary,177 and to report any sale of two or more handguns to a single person in a given week.178 Treasury was not opposed to a ban on registration or quasi-registration that left these regulations intact; NRA was philosophically opposed to the regulations, but recognized the irrationality of tying the bill up with an attack on them. This coincidence of interests proved singularly difficult to put into practice. The barriers were two-fold. The first, and most easily solved, was that any regulations which required submission of records would likely run afoul of section 106's broad bar on gun registration systems. A simple exception could remedy this, and Treasury's January 1983 draft proposed: "Nothing in subsection (d) shall be deemed to affect the validity of any regulations in effect on the effective date of this Act...."179 The second problem proved more intractable. The bill would have deleted from 18 U.S.C. 923(g) the general power to require submission of records. With such a repeal, Treasury would lack the rulemaking power to support such regulations, regardless of whether they were barred or not.180 NRA, conversely, was on record with the argument that the regulations were not [Page 620] authorized by section 923(g), and it could not now agree to any measures that would stipulate that they were. The February 1983 proposal experimented with a novel approach, proposing a change to the effective-date clause to recognize that "[t]he amendments (including repeals) contained in sections 103(f) and 106 shall not affect those regulations now contained in 27 C.F.R. 178.126 and 178.127."181 The Reagan Administration amendments ultimately combined this with a very limited restoration of the record-submission power, providing that licensees "shall not be required to submit to the Secretary reports and information with respect to such records and the contents thereof, except as required by regulations in effect" prior to the bill's effective date.182 This was adopted in S. 914, as reported from committee, but met opposition from Senator McClure. In the end, the text of the disputed regulations was simply written into S. 49 and the exceptions for the regulation deleted.183

With the further changes made by these amendments, the bill's movement slowly accelerated. S. 914 was reported from committee, with the Administration amendments, on August 8, 1984.184 The Senate leadership balked at so controversial a bill and delayed action. In the closing days of the Ninety-eighth Congress, FOPA's sponsors attached it as a rider to a continuing appropriations bill, overriding the majority leader's objections by two-to-one votes.185 The amendment was ultimately withdrawn in exchange for an agreement that FOPA would receive maximum priority in the following Congress. An updated version of FOPA was accordingly introduced in the Ninety-ninth Congress as S. 49186 and was brought to the floor on July 9, 1985.

The Senate debates occupied but a single day. They opened with a series of amendments that were adopted by [Page 621] voice vote. Most were technical, but three had substantive effects. The first changed the bill's proclamation that state laws which had "the effect" of barring interstate travel with an unloaded, "inaccessible firearm" were to be "null and void." The new language would simply recognize the right to transport a firearm, notwithstanding such laws.187 The second deleted as redundant S. 49's provision that prosecutions were not allowed for simple negligence.188 The third provided a misdemeanor penalty for a licensee's making of a false statement in, or failure to maintain, records required by the chapter.189 All remaining amendments were decisively rejected190 and S. 49 passed the Senate by a 79-15 vote.191

S. 49 then passed to the House where its counterpart, Representative Volkmer's H.R. 945, had been languishing in the Judiciary Committee since its introduction.192 S. 49 was referred to the same committee. That S. 49 would not be reported out was hardly news; but only hubris could have led committee chairman Peter Rodino to immediately and publicly pronounce the bill "dead on arrival."193

[Page 622] On October 3, 1985, Representative Volkmer submitted a rule calling for consideration of the bill.194 The timing was significant; the thirty-day waiting period for filing a motion to discharge the Judiciary Committee from consideration of the bill and the seven-day waiting period for moving to discharge the Rules Committee from considering the rule would expire on the same day.195 Discharging the rule, which allowed debate of the bill, gave significant tactical advantages over discharging the bill itself.196 Even so, the petition faced an extremely difficult struggle. A discharge requires signatures of a majority of the entire House -- 218 members. Names of signers are made public only if and when the petition succeeds.197 The House leadership is free to examine the list and exert pressure on vulnerable signers. A member who signs is free to withdraw at any time; once the 218 signatures are obtained, the petition must be put to a vote and muster a majority of those present and voting. A failure in the last test bars all similar discharge petitions for the remainder of the session.198

[Page 623] The difficulties of these barriers explain why only seven discharge petitions had succeeded in the preceding quarter-century.199 Nonetheless, on October 22, 1985, Representative Volkmer filed a petition to discharge the Committee on Rules from consideration of the rule allowing floor action on H.R. 945.200 The petition moved quickly; less than two months later it had 158 signatures.201 Then the drive hit a wall; a month later, the count still stood at 158.202 The apparent standoff may have encouraged overconfidence in the bill's opponents; they made no effort at this stage to employ the traditional counter to a potentially successful petition--the reporting out of a heavily restructured alternative bill. The misjudgment was pivotal. When Congress returned from recess, the count surged ahead; by early March, Volkmer had 203 signatures plus eight commitments to sign.203 With Volkmer only four votes away from a discharge, his opposition sought aid from the House leadership in pressuring signers off the petition. The quest was in vain: the reply was that they were too late; the landslide had developed without a check. Representative Rodino, Chairman of House Judiciary, was to report forthwith a substitute bill and the leadership would give it prompt floor action.204 H.R. 4332 was quickly introduced by Representative Hughes, Chairman of the Subcommittee on Crime.205 This bill would have incorporated some features of S. 49, largely in diluted form,206 and would have added a number of measures favored by Hughes, most notably a variety of [Page 624] mandatory sentence provisions. Only eight days passed between its March 6 introduction and the full Judiciary Committee's vote to report out a more polished substitute.207 It was one day too many; on March 13, the discharge petition received its 218th signature and was taken up by the clerk.208

In exchange for speedier consideration, Volkmer agreed to a rule allowing his bill as an amendment by way of substitute for H.R. 4332.209 A number of last minute amendments modified his substitute to parallel closely S. 49, with the major difference being a co-opting of H.R. 4332's mandatory sentencing.210 The last minute amendments contributed to subsequent confusion in the debates.211

The floor fight was quick and messy. H.R. 4332 and Volkmer's substitute were debated simultaneously.212 Hughes moved a package of amendments to the substitute which would have, among other things, required proof only of a "knowing" violation, deleted the requirement that an alleged unlicensed dealer be shown to have had a "principal" intent of money profits, and limited the interstate "pass-through" provision to rifles and shotguns, cased and [Page 625] inaccessible.213 The amendments lost 248-173.214 An attempt to narrow the interstate pass through also failed, 242-177.215 A third proposed amendment, limiting dealer sales to nonresidents, passed, 233-184.216 One final amendment, banning private ownership of any machinegun not already in lawful ownership on the date of enactment, was raised with only minutes left in the time allotted under the rule. It passed on a rather irregular voice vote.217 The substitute was then accepted in place of H.R. 4332, was passed, and then substituted for the Senate-passed S. 49.218

The House version of S. 49 differed in various aspects from the Senate bill. Mandatory sentence provisions had been expanded, and some new ones were added; interstate sales had been limited to rifles and shotguns, and the freeze on machineguns had been attached. Rather than seeking a conference, whose House members would have been appointed by the House leadership, the Senate leadership brought the House bill to a floor vote. The complex saga of FOPA, however, was not quite over. As a price for an antifilibuster time agreement, the House version of FOPA was passed along with a new Senate bill, S. 2414, which would amend three of its provisions.219 The first amendment altered the interstate transportation provision. As passed, FOPA permitted any nonprohibited person to "transport an unloaded, not readily accessible firearm in interstate commerce" notwithstanding state or local law.220 S. 2414 would allow such persons to "transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm ... if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment...."221 A second [Page 626] amendment is somewhat more striking. It amended FOPA's definition of "with the principal objective of livelihood and profit" to insert a provision that "proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism."222 The amendment, apparently intended to deal with a hypothetical situation involving a supplier of terrorists at cost,223 was as poorly drafted as it was unusual.224 The third amendment would require dealers selling from a personal collection to maintain an informal record of the sale.225 S. 2414 passed both House and Senate on voice votes.226 Only after passage was it realized that while some of the amended sections of FOPA had an immediate effectiveness,227 the remainder of that Act was not meant to take effect until six months after passage. S. 2414 was to go into effect immediately, leaving an incongruity [Page 627] whereby an isolated section or sentence would take effect before the remainder of the amended provision. The Senate hurriedly voted out a concurrent resolution linking S. 2414's effective dates to those of the FOPA sections it amended, and the House concurred.228 At long last, FOPA and its amendments were law. FOPA's seven years of gestation illustrate the legislative application of Holmes' dictum that the life of the law has not been logic, but experience.229

III. IMPACT OF THE FIREARMS OWNERS' PROTECTION ACT

ON FIREARM STATUTES

The impact of FOPA on existing firearm laws can scarcely be overstated. Every significant aspect of the Gun Control Act of 1968, from purpose clause to penalties, is affected to a greater or lesser degree. FOPA's major alterations fall into four categories: changes in acts prohibited by the Gun Control Act; addition of scienter requirements to its penalty clause; alterations of enforcement and administrative powers given by it; and effects on other statutes, such as the National Firearms Act and various state firearm laws. Each of these categories will be examined in turn.

A. Prohibited Acts

The Gun Control Act marked three major expansions of federal control over transactions in ordinary firearms.230 The first greatly expanded requirements that certain transferors obtain a dealer's license (more formally, a Federal Firearms License, or FFL). The second essentially barred, with narrow exceptions, transfers between nonlicensed persons who were residents of different states. The third expanded, albeit in a chaotic manner,231 the categories of persons prohibited firearm ownership or acquisition. The [Page 628] enactment of FOPA directed and substantially affects all three categories of proscribed acts.

1. Dealer Licensing Requirements

One of the Gun Control Act's major changes to existing law had been its expansion of licensing requirements. Under the Federal Firearms Act, a dealer's license had been required of anyone who "engaged in the business" of firearm dealing and shipped firearms in interstate commerce.232 Under the Gun Control Act, licensing was required of anyone who "engaged in the business" or shipped firearms pursuant to such a business.233

The 1968 change greatly increased the scope of the licensing requirement.234 Two chains of caselaw developed interpreting the licensing requirement. The majority of circuits followed the test laid down in United States v. Gross,235 which held that "dealer" means anyone who is engaged in any business of selling firearms, and that "business" is "that [Page 629] which occupies time, attention and labor for the purpose of livelihood or profit."236 The other test originated in United States v. Jackson;237 it considers persons to be dealers "[i]f they have guns on hand or are ready and able to procure them, in either case for the purpose of selling some or all of them to such persons as they might from time to time conclude to accept as customers."238 The Jackson test, however, found favor only in the Tenth Circuit.239 Both tests were quite broad, and could easily be applied to exchanges, acquisitions, and dispositions associated with the firearm collecting hobby. Moreover, neither definition offered much certainty to hobbyists who (prior to FOPA) were required to act at their own risk, subject to felony sanctions. Treasury conceded that the standard was incapable of definition, and confessed on more than one occasion that the standard varied from year to year and case to case.240 The resulting [Page 630] prosecutions, sometimes of collectors who had disposed of a small number of firearms,241 played a major role in bringing about enactment of FOPA.242

Thus, it is not surprising that one of FOPA's major purposes was to "substantially narrow" the "broad parameters" of existing caselaw in this area.243 Under the wording finally enacted, four elements must be proven to establish "engaging in the business" of dealing in firearms:

1. devotion of time, attention and labor to such dealing;

2. as a regular course of trade or business;

3. with the principal objective of livelihood and profit;

4. through the repetitive purchase and resale of firearms.244

[Page 631] The first element is, of course, taken directly from the majority rule first laid down in United States v. Gross.245 The second, however, narrows the rule by requiring that the devotion of energy be pursuant to a "regular course" of business. Since part-time and secondary businesses were meant to be covered,246 this element interlinks with the fourth to require a substantial degree of continuity and to rule out those whose sales are intermittent or on an "as needed" basis.247 The third element marks the main rejection of existing caselaw. That caselaw required that profit be a motive, not that it be the principal motive, in selling firearms.248 Use of the narrow term "principal" in FOPA was no accident; deletion of "principal" was debated and rejected during the Treasury-NRA negotiations.249 The House adopted FOPA's wording over the detailed objections of a hostile report.250 It is also noteworthy that the [Page 632] intent to be proven is one of deriving livelihood and profit. The choice of the conjunctive is, again, no casual matter: the Treasury NRA negotiations considered the disjunctive as an option,251 and the hostile House report emphasizes the conjunctive as an "unreasonable" burden.252 The fourth element joins with the second to emphasize the continuity and repetitious nature of the conduct that must be proven. It also emphasizes that (1) firearms must be repetitively acquired as well as disposed of -- liquidation of collections is not enough -- and (2) the broad provisions of the prior minority rule, which required licensing not only of those with guns to sell, but also of those who held themselves out as able to obtain them,253 are repudiated. Thus, FOPA substitutes a detailed four-element test for the broad and general criterion used under the Gun Control Act. The central thrust of the FOPA definition is toward limiting the term "engaged in the business" to those who treat firearm sales as a business, either of the "storefront" or the "itinerant peddler" variety.

S. 2414 appended an exception to the third element of FOPA's "engaged in the business" definition. The exception was appended, however, not to the definition of "engaged in the business," but to the definition of "with the principal objective of livelihood and profit" contained in the new 18 U.S.C. section 921(a)(22).254 The wording chosen was equally anomalous: "Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal [Page 633] purposes or terrorism."255 The incongruity of requiring the licensing of terrorist supply depots256 is matched by the incongruity of the wording employed. FOPA nowhere requires "proof of profit": it requires proof of action "with the principal objective of livelihood and profit."257 The scope of this exception is likely to remain untested in any event. The rather obvious self-incrimination problem258 and the parallel due process difficulty259 are likely to ensure prosecution of suppliers of terrorists or criminals as aiders and abettors260 or for violation of 18 U.S.C. 924(b).261

2. Interstate Transfers

While FOPA's standard for "engaging in the business" adopts a new and indeed unprecedented definition, its standard for transactions between residents of different states largely represents a return to Title IV of the Omnibus Crime Control and Safe Streets Act.262 That enactment had generally prohibited sales to a nonresident of firearms other than rifles or shotguns; these, in turn, could be sold interstate unless the recipient "could not lawfully purchase or [Page 634] possess in accord with applicable laws, regulations or ordinances' of his state and locality.263 However, prior to its effective date, Title IV was superseded by the Gun Control Act proper, which barred sales of firearms to nonresident nonlicensees, subject only to narrow exceptions.264 FOPA, in turn, returns to a modified Title IV standard, permitting a licensee to sell a rifle or shotgun to a nonresident provided (1) they meet in person to accomplish the transfer, and (2) the sale, delivery, and receipt comply with the legal conditions of sale in both states.265 These provisions in turn raise at least three issues: who is a nonresident; what state laws must be observed; and what state of mind must be proven to establish a violation?

Who is a nonresident?

FOPA does not attempt to define residency. The Gun Control Act has a similar omission, except for military personnel on active duty.266 The legislative history indicates that (1) a person's residence is not necessarily where he votes or pays taxes -- that is, it is not necessarily his legal domicile;267 (2) a person is a resident of the locale where he is "permanently or for substantial periods of time physically located;"268 and (3) a person may have dual residency, or rotate between different places of residence on a regular basis.269

{Page 635] What laws must be heeded?

The Gun Control Act in several subsections uses the phrase "State laws and published ordinances," or its equivalent.270 "Published ordinance" is used as a term of art, describing local ordinances found relevant to the Act and published in the Federal Register.271 This represents a conscious legislative choice against requiring compliance with all "local laws."272 S. 1030, and S. 914 as introduced, would have imposed a parallel restriction on interstate sales, requiring that they avoid "violation of any published ordinance or law of the State or locality" of the sale and of the buyer's residence.273 FOPA's contrasting provision originated with the Reagan Administration amendments to S. 914. These limited interstate transfers to licensees, but only required compliance with "the legal conditions of sale in both such States."274 It is difficult to dismiss the change as accidental; the amendments were given to the Judiciary Committee in a side-by-side comparison with the unamended bill, and they conspicuously omit the former's reference both to "ordinance" and to "locality."275 Yet the amendment did retain the unamended S. 914's presumption that the dealer in an interstate sale knows "the State laws and published ordinances" of both states.276 The report on S. 914, while discussing the amendments, fails to mention this particular change;277 the House report mentions that licensees "would be required to fully comply with the state [Page 636] and local laws applicable,"278 an explanation that does violence to the distinction, maintained since 1968, between state "law" and local "ordinance."279

The floor debates heighten rather than reduce the ambiguity. The most detailed Senate explanation comes from a debate between Senators Hatch and Kennedy, which clearly suggests that the dealer must comply with published, and only published, ordinances.280 The House debates give virtually no guidance beyond a passing reference to "State laws."281

In sum, the use of "the legal conditions of sale in both such States" may refer to: (1) state laws, an interpretation which best reflects the statute's face and its history; (2) all legal requirements imposed either by the state or by its subdivisions, an interpretation supported by the House report but repudiated by the Senate floor debates; or (3) state laws and "published ordinances," an interpretation supported by the most specific exchange of the floor debates but requiring an immense revision of the face of the statute. Altogether, the first interpretation seems indicated by the traditional rules of construction.282

[Page 637]It is necessary to note one other restriction on the legal standards applicable to interstate sales. Both Senate reports note that FOPA is not intended to give extraterritorial effect to state regulations that were meant only to govern local aspects of transfer.283 This appears to codify a commonsense distinction. There is little reason to demand that an out-of-state dealer comply with regulations directed at local aesthetics -- such as requirements that firearms be wrapped upon sale.284

What state of mind need by proven?

As a response to objections that FOPA's requirement of a "willful" state of mind would require the prosecution to assume the burden of proving a dealer's actual knowledge, not only of the law of his own state, but also of the law of the buyer's residence, FOPA added to the interstate sales allowance the provision that the dealer in an interstate sale "shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States."285 The presumption originates from the Treasury-NRA negotiations.286 It appears patterned after the classic "Thayer" or "bursting bubble" presumption.287 Indeed, the language "in the absence of evidence to the contrary" is taken directly from Wigmore's discussion of the Thayer rule.288 The Thayer rule gives a presumption a very narrow [Page 638] effect. "If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirement of some evidence) the presumption disappears as a rule of law and the case is in the jury's hands free from any rule."289 To reinforce this understanding, the report on S. 1030, which introduced the presumption, explains: "The amendment is intended to reverse the initial burden of proof on the issue of knowledge, and not to create an evidentiary presumption."290

The treatment of this presumption as a "bursting bubble," which reverses the initial burden of proof and enables the government to survive a directed verdict at the close of its case, may indeed have proven prescient. The United States Supreme Court had, long before FOPA, held that imposition upon the defense of a conclusive presumption would, by circumventing the burden of the government to prove all elements of a crime beyond a reasonable doubt,291 violate due process.292 Nearly two years after the critical amendment to S. 1030, the Supreme Court ruled that rebuttable presumptions suffered from a similar defect.293 FOPA's employment of a "bursting bubble" presumption, which shifts only the burden of going forward, and vanishes at the first introduction of evidence from the defense, may enable it to survive a similar fate.294 Regardless, it should be apparent from FOPA's face and its history that the defense [Page 639] is only required to produce some proof, at which point the presumption vanishes and the jury is left to assess the facts without instruction on presumptions.295

3. Prohibited Persons

Few portions of the Gun Control Act were as garbled as its core, the definition of "prohibited persons" who were forbidden to acquire, possess or transport firearms. Title IV, as amended by the Gun Control Act, prohibited dealers, and only dealers, from selling to its prohibited classes.296 It barred felons, fugitives from justice, drug users, and persons adjudicated "mental defectives" or committed to an institution from the receipt of guns that had been shipped in interstate commerce.297 Title VII on the other hand barred felons, persons with a dishonorable discharge, those "adjudged mentally incompetent," those who had renounced American citizenship, and illegal aliens from receiving, possessing or transporting firearms "in commerce or affecting commerce."298 Even where the classes overlapped, divergence remained. Title IV defined the disabling criminal conviction as one publishable for more than a year, excluding certain business offenses and offenses expressly denominated misdemeanors; Title VII simply referred to "felony." Title IV excluded crimes for which the Secretary had given "relief from disability," but made no provision for pardons; Title VII excepted most pardons, but failed to mention relief from disability. Title IV refers to mental commitment or finding of defect; Title VII only to judicial findings of incompetence. Further differences are found between the provisions defining the necessary connections to commerce, the penalties (a maximum of two years imprisonment for Title VII, five for Title IV) and even the meaning of the word "firearm"!299 Attempts to reconcile or explain these differences produced a wide-ranging and often conflicting caselaw. The Supreme Court settled early that, when the [Page 640] offense was covered in both Title IV and Title VII, the government could charge either at its option.300 Other opinions recognized and delineated the commerce connection necessary under each statute.301 The differing treatment of pardons caused a continuing split among the circuits, some holding that a pardoned citizen is not a prohibited person under either statute, others holding that he was still subject to Title IV's bar even though exempt under Title VII.302

The development of alternative procedures in criminal justice posed additional problems for the Gun Control Act's simple criteria of felony convictions and full pardons. States experimented, for example, with procedures for restoration of civil rights or expungement of first-time convictions.303 Persons who obtained relief under these systems, however, were generally held to still be "prohibited persons" under the Gun Control Act.304 Other states experimented with "open ended" sentencing schemes under which an offense could be treated as a misdemeanor or a felony in the discretion of the sentencing judge.305 These were generally treated as felonies under the Gun Control Act, even when [Page 641] the sentence had been as a misdemeanor.306 Still others experimented with systems by which a guilty plea, followed by probation, could end in a dismissal without a finding of guilt.307 The Supreme Court soon ruled that such proceedings constituted a conviction for Gun Control Act purposes.308 The general result was that treatment under any of these systems, largely devised to protect against the effects of a felony record, left the recipient barred from firearm ownership as a felon. Only a relief from disability was sufficient to lift the bar, and this remedy was unavailable to anyone convicted under the Gun Control Act or National Firearms Act.309

FOPA dealt directly with all these anomalies. Title VII was repealed and its prohibited person categories incorporated into Title IV.310 The jurisdictional bases of both Titles IV and VII were now applied to all categories; it was sufficient for any of them to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."311 All persons, and not merely licensees, were forbidden to sell or dispose of firearms to those so barred.312 FOPA's main impact in this area was thus two-fold: uniformity was established between the Title IV and Title VII prohibitions, exceptions, jurisdictional bases and penalties, and caselaw giving a narrow effect to state exercises of clemency was negated.313 It is perhaps regrettable that [Page 642] FOPA's renovation did not extend further. A redefinition of other "prohibited person" categories is long overdue. FOPA's passage, by re-enacting the categories dealing with mental adjudications, may be taken to accept prior narrow interpretations of these terms,314 but it sheds little light on the status of convictions in court-martials.315

[Page 643] FOPA also expanded the "relief from disability" process. The original relief procedures set out in Title IV were limited to persons barred from gun ownership by reason of conviction; all other bars were left unmentioned. Thus, those who were prohibited arms ownership by virtue of a past mental adjudication or dishonorable discharge were denied any possibility of relief. The origin of this limitation was understandable. As enacted, Title IV had limited "prohibited person" status to three categories: fugitives from justice, those indicted for an offense punishable by more than a year's imprisonment, and those convicted of such an offense.316 The first were hardly likely to apply for relief, and the second would soon either be cleared or convicted. Limiting relief to those disabled by conviction was thus eminently rational. The only questionable measure lay in carrying over the Federal Firearms Act's exclusion from relief of those convicted of a violation of the federal gun laws themselves.317 The critical legislative mistakes came at two later points: the enactment of Title VII, which added a variety of new prohibited person categories and failed to mention relief mechanisms,318 and the enactment of the Gun Control Act proper, which added to the Title IV list without a parallel expansion of its relief mechanism.319

[Page 644]The actual relief mechanism under FOPA remains largely unaltered from that of the Gun Control Act.320 Agency regulations require triplicate submission of an application to regional authorities, who thereafter conduct an investigation.321 FOPA does make express and broad provisions for review of an agency denial in the district court.322 A right to such review had previously been recognized, but on a very narrow basis.323 FOPA, while retaining review on an "arbitrary and capricious" standard324 uniquely expanded district court review by allowing the court to admit evidence outside the record if the court deems it necessary to prevent a miscarriage of justice.325 Since many applicants may file pro se and secure counsel only when judicial proceedings become imminent, and counsel not schooled in administrative practice [Page 645] may not appreciate the importance of the initial record to later review, this allowance can significantly aid the court in ensuring that justice is done in actual practice.326 At the same time, reconciling the "arbitrary and capricious" test with consideration of materials outside the record is not a simple task. An imaginative reconciliation is suggested in the Senate reports: if the court is persuaded that consideration of the evidence is essential to doing justice in the case, it can admit the evidence, after requesting the presence of an agency investigator. It can then stay further proceedings while the agency determines whether the new evidence will change its decision.327 The court could also, presumably, direct the agency to consider a transcript of the new evidence.328 The delineation of these unique and practical measures underlines an intent that the review secure actual justice in each case.

FOPA thus substantially changes the Gun Control Act's list of prohibited conduct. Each of the 1968 Act's major proscriptions -- dealing without a license, sales to nonresidents, and sales or possession by "prohibited persons" -- were significantly changed. Yet none of these changes will affect so many cases in so significant a manner as FOPA's key provision: the imposition of scienter requirements.

B. Scienter Requirements

The Gun Control Act, as originally enacted, simply provided [Page 646] that "whoever violates any provision of this chapter ... shall be fined not more than $5,000, or imprisoned not more than five years, or both."329 In United States v. Freed,330 a case involving possession of unregistered "destructive devices," in this case hand grenades, the Supreme Court held that "consciousness of wrongdoing" was not an element of the violation, nor constitutionally required, since "one would hardly be surprised to learn that possession of hand grenades is not an innocent act."331 Freed stressed that the due process test involved a practical judgment as to whether there was "the probability of such knowledge," that is, of the legal duty.332

Although Freed on its face was limited to possession of hand grenades, and both Brennan's concurrence333 and later decisions334 stressed that knowledge of the act prohibited (if not of its illegal nature) was required, lower courts read the decision as both a broad authorization applying to all provisions of the Gun Control Act and imposing strict liability.335 Post-Freed caselaw that struck down strict liability [Page 647] statutes or read intent requirements into them336 had no visible effect in the field of firearm regulation. No feature of FOPA engendered more legislative approval than its rejection of this caselaw in favor of specific scienter requirements.337

FOPA's change in this area is hard to overstate. The Gun Control Act was converted from one construed as a strict liability statute to one largely requiring the highest degree of criminal state of mind. The earliest forms of FOPA had proposed to require that all offenses be proven "willful."338 After negotiations in which Treasury argued that it ought [Page 648] not to be required to prove intent to violate the law for serious offenses such as possession of stolen weapons, felon in possession and illegal importation, a bifurcation was drafted under which these offenses needed proof only of a "knowing" violation, while the remainder still required proof of willfulness.339 After lengthy negotiation over which offenses belonged in each category, this compromise became the Reagan Administration position340 and was incorporated into FOPA as enacted.341 Reasonably accepted definitions attach to both "knowing"342 and "willful"343 in criminal statutes, so the matter of scienter might have ended here.344 Indeed, the Senate report on S. 1030, FOPA's predecessor in the Ninety-seventh Congress, explained in quite specific terms that "willfully" was inserted "to require that penalties be imposed only for willful violations -- those intentionally undertaken in violation of a known legal duty."345

Unfortunately, this understanding is clouded by the report on S. 914, S. 1030's successor in the Ninety-eighth Congress. That report stated, without explanation or citation, that "the Committee intends 'willful' conduct to cover situations where the offender has actual cognizance of all facts necessary to constitute the offense, but not necessarily [Page 649] knowledge of the law."346 Since the two reports represent the same committee's attempt to analyze the same word in the same section of essentially the same bill, the discrepancy is hard to explain, other than as a possible typographical error in the later report.347 Neither Senate report technically represents the bill enacted, which was the House version of the still later Senate S. 49.348 The House report is in clear accord with the first Senate report, arguing that under S. 49,

"violations of this requirement would only be punishable if they were "willful." Willful violations would be more difficult to prove than the usual "knowing" standard.... [I]f the failure was due to a mistake of law or fact or due to negligence on the part of the licensee, the violation of the law most likely would not be punishable."349

It also quoted, as the "Views of the Administration," a leaked "memo to files" from Treasury, which specifically noted that interstate "[p]urchasers' violations would be difficult to prove in view of the requirement to prove willfulness on their part, i.e., the purchaser knew that State or local law was violated."350 Unfortunately, even this report's illumination is clouded by the action of one Representative who quoted the later Senate report on the House floor and attempted to secure the floor manager's agreement that that Senate report explained his bill.351

[Page 650] While typographical and analytic errors in reports are not common, they are also not unknown.352 Here, the report itself is inconsistent, acknowledging, for example, that the willful requirement was necessary to ensure against felony prosecution for a "careless" or "inadvertent" violation.353 This clearly would be chargeable if "willful" connotes knowledge of the facts, but not of their illegality, and, in relation to the parallel use of "willful" in the forfeiture section, explaining that "[t]hus no seizures ... are authorized where a criminal state of mind is absent."354

More to the point, accepting this isolated explanation of "willful" would require overlooking the entire and extensive history of a vital component of FOPA. Early versions of FOPA required a willful state of mind for any prosecutions.355 That this was understood to require knowledge of illegality is apparent from the report on S. 1030. The division between "willful" for some offenses and "knowing" for others originated in the Treasury-NRA negotiations, and was specifically premised upon an understanding that proof of willfulness required proof that the defendant knew of the illegality of his conduct.356 In discussing the amendment before the Judiciary Committee, Treasury explained that the unamended S. 914

"would require proof of the element of willfulness in establishing any violation of the Act. This new element would make it more difficult to successfully prosecute cases under the Act. For example, in the absence of evidence that the defendant had specific knowledge that his conduct violated Federal law, he would not violate the Act...."357

The House Report, hostile to FOPA, conversely criticized its use of "willful," since "[w]illful violations would be more difficult to prove than the usual 'knowing' standard.... [I]f [Page 651] the failure was due to a mistake of law or fact or due to negligence on the part of the licensee, the violation of the law most likely would not be punishable."358 This understanding is reflected throughout the floor debates in both houses, where "criminal intentions" or its equivalent recurs as an explanation of "willful."359 It is also reflected in specific legislative action. The key House vote substituted the core of FOPA, an amendment by Representative Volkmer, for the committee reported H.R. 4332, which was a substantial dilution of FOPA's provisions.360 The committee-reported H.R. 4332 would have inserted the most modest state-of-mind requirement, allowing conviction of whoever "knowingly engages in conduct that is a violation of" the Act.361 Representative Hughes thereafter offered an amendment to Volkmer's substitute, which amendment would have changed the substitute's knowing-willful dichotomy to a simple "knowingly."362 Prior to the votes on Volkmer's substitute and on Hughes' amendment to it, the House was repeatedly informed, by both sides of each conflict, that a vote for the Volkmer language was a vote for requiring knowledge of violation of law as a condition to most convictions under the Act.363 In light of these extensive considerations, [Page 652] it is impossible to avoid the conclusion that Congress was fully aware that its use of "willfully" in FOPA would require proof that the defendant actually knew of the illegality of his acts.

The "knowingly" requirement is less well explained, probably because its meaning is more obvious.364 Apart from the Senate action, deleting as superfluous a proviso that "knowingly" did not encompass "simple carelessness,"365 this term received little clarification. This is unfortunate, [Page 653] since the simple use of "knowingly violates" leaves unresolved questions of whether knowledge is required of jurisdictional facts (such as movement of the firearm in commerce)366 or even of the existence of the violation itself,367 as well as the result of its interaction with violations which themselves contain a different element of knowledge, for example, selling to a person whom the seller knows or should know is a felon.368

FOPA thus significantly alters the state of mind requirements required by the Gun Control Act. Strict liability, hitherto the rule, is essentially abolished.369 Certain offenses, distinguished by their more serious natures, are singled out for a requirement only that accused violators know of their actions. The remaining provisions of the Act require stiffer proof that the defendant "willfully" violated the statute.

C. Enforcement and Administration

FOPA's impact on enforcement and administration of the federal firearms laws is wide-ranging. It generally tightens standards for record inspection and disposition, firearm seizures and forfeitures, license revocations and general [Page 654] criminal penalties, while expanding mandatory sentencing for use of firearms in mala in se offenses.

1. Inspection and Acquisition of Licensee Records

The Gun Control Act required licensees to maintain records of firearm acquisitions, dispositions, and inventories. Furthermore, it permitted warrantless inspection of these "at all reasonable times," and broadly authorized the Secretary to require submission of reports on the records' content.370 FOPA establishes significant restrictions on the two latter powers. In general, administrative inspections of licensee records now require a magistrate's warrant, based on a showing of reasonable cause to believe evidence of a violation may be found.371 Three exceptions, however, nearly swallow this rule. Neither warrant nor reasonable cause is needed for (1) a reasonable inquiry in the course of a criminal investigation of a person other than the licensee;372 (2) an annual inspection for ensuring compliance with recordkeeping requirements;373 or (3) tracing a firearm in the course of a bona fide criminal investigation.374 While [Page 655] these sizably reduce application of the warrant and cause requirement, it remains effective for its primary purpose in any event: to prevent inspections undertaken without immediate law enforcement need, or abused for the purpose of harassment.375

FOPA also institutes some measures designed to minimize the harassment potential of an otherwise authorized inspection or search. Only records material to a violation of law may be seized376 and even as to these, copies must be furnished the licensee within a reasonable time.377 The unusual appearance of the last protection vanishes upon reflection; because a licensee is legally bound to buy and sell only upon recordation, removal of his records is more than an inconvenience.

The power of the Secretary to acquire licensee records is likewise limited by FOPA. Requirements to (1) submit records upon going out of business, (2) submit a report upon sale of more than one handgun to the same person during the same week and (3) submit reports of sales when ordered to do so by the Secretary,378 are enacted into law.379 Conversely, the Secretary is forbidden to require submission of reports "except as expressly required by this section."380 Paralleling this prohibition is the proviso that no future regulation may require that any records required by the Act "be recorded at or transferred to a facility owned, managed, or controlled by the United States or any state or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established."381

2. Firearm Seizure and Forfeiture

Forfeiture proceedings are creatures of statute;382 the Gun Control Act broadly authorized seizure and forfeiture of arms used in, involved in, or intended to be used in any violation.383 Customs forfeiture procedures were incorporated by reference,384 which offered few safeguards to the [Page 657] putative owner.385 FOPA institutes a number of significant safeguards. First, strict liability is no longer the rule.386 The property whose forfeiture is sought must be linked to a knowing or willful violation.387 A second safeguard, aimed at preventing seizures of an entire collection or inventory, requires that the seized firearms or quantities of ammunition be "particularly named and individually identified" as used in, involved in, or intended to be used in the violation.388 A third safeguard overrules United States v. 89 Firearms389 [Page 658] and forbids forfeitures when the claimant has been charged criminally and the charges end in dismissal or acquittal, except a voluntary dismissal prior to trial.390 A fourth set of safeguards restricts firearms seizures that are specifically based upon intent to use in an offense. The Gun Control Act traditionally permitted forfeiture based upon use, involvement, or intent to use in a violation of the Act or other federal criminal law.391 In reaction to complaints that "intended to be used" had served to justify seizing entire firearm collections or dealers' inventories when only isolated violations were alleged,392 the earlier versions of FOPA sought to delete "intended to be used."393 The Reagan Administration amendments to S. 914 would have restored this, but with the proviso that intent must be shown by "clear and convincing evidence."394 The Senate Judiciary Committee adopted this compromise, but added the further restriction that the alleged intent must be to commit certain specified offenses.395 Both safeguards carried over into S. 49 and thus into FOPA.396

The restrictions have significance beyond the forfeiture hearing itself. Proof that the firearm's owner or possessor had the requisite mental state and, if intent to use in a violation is alleged, met the "intended to be used" qualifications, is a precondition to the firearm's being "subject to seizure [Page 659] and forfeiture."397 Likewise, only firearms "particularly named and individually identified" as meeting those criteria are "subject to seizure, forfeiture, and disposition."398 This cannot easily be dismissed as an unconscious slip of the draftsman's pen. The floor debates show repeated references to overly-broad seizures.399 More to the point, the House report noted quite specifically that under FOPA:

"A potentially significant problem is that the authority to seize and forfiet [sic] is limited only to firearms or quantities of ammunition "particularly named and individually identified as involved in or used in" specified violations of law. This is narrower than interpretations of the Fourth Amendment requirement that a warrant "particularly" described the place to be searched and the persons or things to be seized, and the exceptions involving objects in "plain view" and "inadvertent discovery." It would appear that contraband firearms could not be seized if they had not been specifically identified in the search warrant as being used in a specific violation of the law."400

The Senate reports are not so explicit, but acknowledge that the individual identification requirement "is intended both to prevent the issuance of general warrants, leaving it to the executing agents to decide which firearms meet the general criteria ... and also to prevent wholesale forfeiture...."401 Requiring the issuing magistrate to find, in some cases by clear and convincing evidence, that the person against whom a search warrant is directed had the requisite state of mind and that the property to be seized can be individually linked to the violation, will involve fairly substantial changes in practice. The same will result from requirements [Page 660] of warrants to seize what would normally be in "plain view."402 At the same time, the face of the statute and its history alike suggest that this is the only fair reading of the legislative intent.

The last safeguard imposed by FOPA on seizures and forfeitures is that of time. Traditionally, seizure actions have been subject to a five year statute of limitations403 and to only the most general due process restrictions on excessive delay.404 Delays of many months between seizures and initiation of forfeiture are frequently upheld under these standards.405 FOPA works a dramatic change here. "Any action or proceeding" for forfeiture must be commenced within 120 days of the seizure.406 The Senate reports make it clear the time limit is jurisdictional.407 In a judicial forfeiture, application of the time limit should be simple: a civil action is commenced by the filing of the complaint.408 In an administrative forfeiture, in which publication and service of the notice must precede recourse to the court,409 the issue is more difficult. The question becomes whether the limitation period stops with the filing of the administrative notice or only with the filing of the judicial action. The sole indication to be found in the statutory history is the remark of FOPA's House sponsor, in arguing the comparative inadequacies of H.R. 4332, that that bill would "not require an agency to bring judicial actions within 120 days, or any other limit...."410 FOPA's language and purposes support his reading. [Page 661] "Action" or "proceeding" generally refer to judicial actions,411 and the latter term is used in the statutes authorizing judicial forfeiture at the close of the administrative process.412 Merely requiring initiation of administrative forfeiture within the time allowed would not achieve much of the statutory objective: the administrative proceedings serve little purpose beyond allowing entry of default forfeitures without recourse to the courts. The claimant receives his day in court only when judicial proceedings have begun, so allowing the administrative notice to stop the running of the limitation period would not prevent the agency from delaying indefinitely the claimant's opportunity to present his case. A mandate that the judicial action be commenced within 120 days will, to be sure, place certain time pressures upon the enforcing agency,413 but Congress appears to have shown far more concern for the claimant's deprivation than for the agency's convenience.414

3. Licensee Penalties and Revocations

FOPA also has an impact on penalties available against licensees. In addition to imposing the general scienter requirements discussed above, FOPA also downgrades to a misdemeanor a licensee's recordkeeping violations, whether involving a failure to keep records or an entry of a false record.415 In the words of a sponsor, this Senate floor amendment [Page 662] was intended to ensure that the dealer would not be "subjected to harsh felony penalties for technical violations of the rigid recordkeeping standards" of the Act.416 Its adoption was also part of a quid pro quo for dropping of the Committee's exclusion of the "simple carelessness" defense.417 Two limitations are immediately apparent. First, these misdemeanor provisions relate only to a licensee; a purchaser who provides false information can still be charged with a felony. Second, they relate only to the recordkeeping aspect of a transaction. A sale illegal per se can still be the basis of felony charges for the firearm transfer itself.418

On the civil side, FOPA makes two noteworthy amendments relating to license revocation proceedings. First, it expressly provides that a licensee is allowed a de novo review on an appeal to the district court. This is a response both to reports of extreme irregularities in the administrative process,419 such as appointing as hearing officer a prosecuting official with previous involvement, and to caselaw which summarily upheld such administrative findings unless the licensee managed to raise substantial doubt as to their outcome.420 [Page 663] FOPA expressly provides that the review will be de novo and that the court may consider evidence not considered at the administrative hearing.421 The Senate reports make it clear that the caselaw allowing a constricted review is no longer good law.422 Accordingly, it would appear that future reviews of license revocations will require a full hearing de novo.423

FOPA's second significant amendment to this section involves the insertion of a proviso that revocation is barred where the same grounds have been alleged in a criminal action against the licensee, and the criminal action has ended in his acquittal or a dismissal, other than a voluntary dismissal prior to trial.424 The bar extends to any revocation based "in whole or in part" on the facts forming the basis of the criminal charges, which suggests that an agency considering revocation may need to exercise great care in the drafting of the revocation notice and in the conduct of the administrative hearing.425

4. Awards of Attorneys' Fees against the United States

The traditional "American rule" denying recovery of attorneys' [Page 664] fees to a successful litigant426 has been extensively eroded by recent legislation.427 From the standpoint of federal agency action, the Equal Access to Justice Act clearly marks the greatest incursion.428 The retention of attorneys' fees provisions in FOPA and its predecessor bills despite passage of the Equal Access to Justice Act might suggest that FOPA establishes a still broader standard. The suggestion would be accurate. While the Equal Access to Justice Act allows awards only if the agency act was "unsupported by substantial evidence" or "not substantially justified,"429 it is surpassed by a bifurcated standard of impressive scope: a prevailing claimant in a forfeiture action shall be allowed a reasonable attorney's fee; a successful citizen in "any other action or proceeding under the provisions of this chapter" may receive such an award if he establishes that such action "was without foundation, or initiated vexatiously, frivolously, or in bad faith."430 The former, mandatory provisions are relatively straightforward;431 the latter, discretionary provisions, are in contrast, likely to generate considerable controversy as to their scope, grounds, and procedure.

Scope

The award of attorneys' fees at the close of trial to a successful criminal defendant would seem a radical innovation in criminal procedure. Yet, there can be no doubt that FOPA accomplishes exactly that. FOPA's general attorneys' fees provision applies to "any other action or proceeding [665] under the provisions of this chapter"; in other words, the Gun Control Act.432 It might be suspected that this was merely the product of legislative oversight, a failure to realize that criminal cases are "actions or proceedings," too. But the legislative history makes it inescapably clear that Congress knew and intended that criminal actions be covered. The first Senate report states unequivocally:

"If an individual has in fact been deprived of his property unjustly, and establishes such in court, these [sic] is little reason to put the burden of costs upon the just claimant rather than those who have unjustly taken his possessions. Such an award is likewise to be made in any other action, civil or criminal, under this chapter, where the court finds it was undertaken without foundation or from specified bad motives."433

The later Senate report grouped both categories into a single sentence:

"If an individual has in fact been deprived of his property unjustly or has been unfairly forced to defend himself, and established such in court, there is little reason to put the burden of costs upon the just claimant rather than those who have unjustly taken his possessions or forced him to defend himself in an unreasonable action."434

On the House floor, Representative Hughes argued with even greater specificity that, if enacted, 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."435 Accordingly, the extension of FOPA's general attorney's fees provisions to "all" proceedings under the Gun Control Act must be read to cover, and to have been intended to cover, criminal proceedings as well as civil.

Grounds

FOPA's general provision for attorneys' fees mandates (with the use of the word "shall") their award when the [Page 666] court finds that the action "was without foundation, or was initiated vexatiously, frivolously, or in bad faith."436 Although the legislative history is remarkably silent on the background of this test, its genesis appears to lie in Christiansburg Garment Co. v. EEOC,437 in which the United States Supreme Court authorized awards of attorneys' fees to successful civil defendants in EEOC litigation. The Court approved of the tests employed in two circuits, one allowing fees upon a finding that the government's action was "unfounded, meritless, frivolous or vexatiously brought," the other "where the action brought is found to be unreasonable, frivolous, meritless or vexatious."438 The Court made it clear that either subjective bad faith or pursuit of an objectively groundless claim would suffice for an award.439 Tracking this dictum, FOPA draws a demarcation between the objective "without foundation" and the subjective "vexatiously, frivolously, or in bad faith" bases for an award. A wide variety of conduct may meet these criteria, ranging from pleading factually unfounded or legally barred claims440 to failure to make reasonable inquiry into the law or use of harassing, though not technically illegal, tactics441 to outright perjury based on personal spite.442 The availability of awards for defense against an unfounded part of an action443 may militate against "overcharging" a defendant.444

Procedure {Page 667]

The courts have generally held that due process requires a hearing prior to assessment of fees against an unsuccessful civil plaintiff.445 In a claim against the government, due process for the defending party is not a direct requirement. Moreover, where an objective standard ("without foundation") is the basis for the claim, the court will often be in a position to rule upon the existence or lack of a foundation at the close of the underlying action.446 As a practical matter, handling of the claim (particularly when based upon the subjective grounds) will require some manner of hearing in most cases.

Collection

FOPA requires, as a precondition of governmental liability for attorneys' fees, that such be "provided in advance by appropriations Act."447 This language was inserted at the request of House Budget Committee members, who maintained that otherwise the bill might have led to commitment of unappropriated funds and thus require referral to their Committee.448 The practical significance is not too great. In 28 U.S.C. section 2414, payment of final judgments and compromises is authorized, upon settlement, by the General Accounting Office. These are payable out of the "Judgment Fund," a continuing appropriation created by 31 U.S.C. section 1304. The sole significance of FOPA's qualifier will likely lie in restrictions on awards toward the end of a given fiscal year, when the Judgment Fund may be low or exhausted. In such an event, the motion may have to be carried over until the arrival of a new fiscal year.449

[Page 668] FOPA's enforcement and administration provisions thus comprise a wide spectrum of innovations. Administrative inspections, seizures, forfeitures, revocations and penalties are all sharply limited; attorneys' fees are, in contrast, liberally provided.

D. Effect on Statutes Other Than the Gun Control Act

While FOPA's main thrust was directed at the Gun Control Act, it also affects other firearms laws as well. Its main impact here is to expand the scope and restrictions of the National Firearms Act, while curtailing the application of certain state weapons laws.

1. National Firearms Act

The National Firearms Act essentially requires Treasury permits for manufacturing, transferring, possessing, or transporting interstate any "firearm," a term of art limited to machineguns, silencers, "sawed off shotguns" and rifles, and similar guns.450 FOPA alters the provisions of the National Firearms Act in two respects. First, the definition of "machinegun" is expanded to include "any part designed and intended solely and exclusively ... for use in converting a weapon into a machinegun."451 Already included, within such definition, was "any combination of parts designed and intended" for converting regular firearms into machineguns.452 This was primarily aimed at "M-2 conversion kits," sold as military surplus and widely available prior to 1968, which could convert an ordinary surplus M-1 carbine into a full automatic M-2 version.453 By the 1980s, however, some manufacturers began to market a single part -- usually a modified trigger or interrupter -- which, when installed in a designated semiautomatic rifle, converted it to fully automatic fire.454 As each kit involved only a "part," not a "combination of parts," it was not covered within the statutory [Page 669] language. FOPA adds a single part to the definition, albeit with the stricter standard of "designed and intended solely" for such conversion. The legislative history indicates that this constriction was intended to exclude parts intended as supplements or repair parts for arms, whether semiautomatic or fully automatic, and parts that might be used either for conversion or for other purposes.455 Implementation of this amendment will require overcoming both practical and legal barriers. The practical one is simply stated: a machinegun, like any other National Firearms Act weapon, must be identified by serial number,456 and many of the one-part conversion kits involve parts measuring perhaps an eighth of an inch by a half inch. The passing of this camel through the eye of a needle is more simply overcome then some of the legal problems, however. First, such a part was not a machinegun and thus not a National Firearms Act weapon prior to the passage of FOPA. It, therefore, could not have been registered as such. Yet, immediately upon enactment of FOPA, it was transformed from an unregisterable part to a "firearm," and its unregistered possession became punishable by ten years' imprisonment. It was thus impossible for an owner of such a part to avoid violation of the new statute. This flaw can be remedied by Treasury's exercise of its general power to declare an amnesty for registration.457

The second provision of FOPA relative to machineguns is more difficult to dispose of. An amendment to FOPA, added on the House floor, supplemented the Gun Control Act with the following:

"(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to--

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection [Page 670] takes effect."458

The primary difficulty here is not one of application but one of interpretation. The prohibition is perfectly clear, but determining the intended effect of the first exemption calls to mind the centuries-old plaint, "an Act of Parliament can do no wrong, though it may do several things that look pretty odd."459 By exempting transfers and possession "under authority" of a federal department or agency, Congress could easily have intended either of two inconsistent exemptions:

1. Only machineguns owned by federal agencies and meant for use in the course of official duties are possessed under authority of an agency; or

2. Machineguns possessed under National Firearms Act permits issued by the Secretary of the Treasury, presently or in the future, are possessed under authority of an agency.

Unfortunately, the legislative history is singularly unhelpful. The amendment came up on the House floor, time expired before it could be debated, and it passed on a voice vote of questionable propriety.460 As a result, the House vote has no legislative history, aside from the frantic pleas of one Representative, moving for additional time and implying that it "banned" machineguns, which it clearly does not.461 On return of the amended bill to the Senate, two Senators conducted a colloquy relating primarily to the exemption for presently possessed machineguns and devoted to listing actions which were not meant to be covered by the House-proposed ban. Even the limited light this sheds on the issue is blocked by a twofold barrier: the pair of Senators involved in the colloquy appear mainly concerned with demonstrating that the House amendment is not meant to bar [Page 671] what it clearly does bar,462 and another Senator objected to the colloquy as not reflecting his or other Senators' understandings.463 Denied any clear history, we are left both with the recognition that repeals by implication are not favored464 and the inevitable deduction that Congress must have meant to rule out something previously allowed.465 The application of the normal rules of construction to this amendment will, perforce, yield a result which can best be [Page 672] characterized, not as a choice of the better interpretation, but as a choice of the "less worse" one.

Applying this approach to the first possible interpretation which views "under the authority of" the United States to exclude permits issued under the National Firearms Act and to include only actual ownership by the United States or an employee acting in the scope of his duties, a number of deficiencies become apparent.

First, we are required to assume under this interpretation that Congress for some reason overlooked the fact that such an exemption was completely unnecessary. The amendment adds a prohibition to the Gun Control Act, and the Gun Control Act already exempts arms "sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof."466 If a narrower exemption was desired, the logical choice would have been the National Firearms Act's exclusion, from tax requirements, of arms transferred "to the United States" or made "on behalf of the United States."467 There was no need to employ a broader standard of "under the authority of" unless, in fact, the House desired to employ a broader exemption than that which would ordinarily apply.468

Second, this first possible interpretation would raise a number of constitutional questions. A fifth amendment challenge to prosecutions for failure to register newly made firearms is obvious; as to these, the registration requirement would impose a duty to confess possession of an item whose possession is illicit.469 To be sure, this would not rule out prosecution because charges could be brought under the amendment itself, for illicit possession. But the amendment is to the Gun Control Act, not the National Firearms Act, and it thus bears a five-year rather than a ten year penalty.470 It is rather doubtful that a House concerned with illicit [Page 673] machinegun use would have intended a halving of the effective penalties. Another, more subtle constitutional problem surfaces when the constitutional bases of the amendment are evaluated. The amendment reaches possession, which in most cases will be an intrastate activity. To be sure, a case of "affecting commerce" could be argued but Congress did not argue it. The preamble to FOPA reflects only findings that sundry constitutional rights need to be protected against enforcement policies, and that the Congressional intent to avoid placing undue restrictions upon possession of firearms useful for any lawful purpose would be implemented by this legislation.471 If the purpose of the amendment was to outlaw future acquisition and intrastate activities with a class of firearms, an appropriate finding of "affecting commerce" should have been made, perhaps patterned after the elaborate finding,472 supported by debate,473 used with Title VII's ban on possession of firearms by prohibited persons. No such finding was made in FOPA, and the only references to machineguns under permit, which is what the amendment would restrict under this interpretation, are Senate statements that those with such firearms "have complied with the most rigorous firearms law imaginable" and that "it is my understanding that there is not a single instance on record of a legally possessed machinegun having been used in a predatory street crime."474 These statements were made by a legislator who had announced his intent to vote for the bill as amended by the House;475 they went unchallenged by any other legislator. An appropriate finding, keyed to this amendment, of "affecting interstate commerce" might thus [Page 674] have been difficult to draft and support. Absent such a finding, application to simple possession must, at the least, raise constitutional questions.476

Yet another difficulty raised by the first proposed interpretation is a practical one. If "under authority of" the United States does not include National Firearms Acts permits, manufacturers who supply the United States must fall back on the amendment's other exceptions. These exempt transfers "to or by" the United States, and possession "by" it.477 Neither provision exempts possession by a manufacturer who intends later to sell his item to the United States. Nor would they exempt transfers to that manufacturer of components (i.e., receivers, which are themselves "machineguns" even before assembly)478 by subcontractors. Reading "under authority of" to exclude these manufacturers' National Firearms Act permits would thus likely cripple military procurement,479 which is unlikely to have been an object of Congress. Development and research, in which non-governmental entities have played a major role,480 [Page 674] would be even more clearly affected, since individual specimens of their prototypes are rarely sold to the United States. Export of fully automatic arms would likewise be impaired, since these are hardly being sold to the United States. These practical consequences of reading "under authority of" to exclude National Firearms Act permits argue strongly against the hypothesis that Congress intended such a meaning.

The alternative interpretation would avoid these difficulties. It would also comport with the commonsense reading of the terms employed: it is hard to say that a person who receives or transfers a firearm after "the Secretary [of the Treasury] has approved the transfer"481 does not possess and transfer "under authority of the United States, a department or agency thereof."482 Indeed, the chief sponsor of the amendment at issue used "authorized" in exactly this sense during the floor debates.483 This is consistent with prior enactments; where "under authority of the United States" has previously been employed in Title 18, it has been used to broadly describe acts of private individuals or groups acting under color of a federal license or permission.484 This interpretation is subject to the objection that it makes the amendment meaningless; if only arms possessed without permits are banned, the ban is useless, since those arms are already illegal. However, there remains the possibility that the amendment will bar future exercise of the amnesty [Page 676] power given the Secretary by the Gun Control Act. Under this provision, the Secretary retained continuing and broad authority to call an amnesty for registration of presently illegal machineguns.485 The subject of these powers had earlier been raised on the Senate side, where the majority leader had suggested their expansion, and the enforcing agency had strongly opposed the suggestion.486 That ruling out such an amnesty was meant to be an effect of the amendment is suggested by a Senate colloquy specifically singling out that effect.487

In sum, the second interpretation appears preferable as the "less worse" approach to what, if anything, Congress likely intended by this amendment. The chief objection to such a reading is that it seems a miniscule result for such an effort -- at least on the Senate side, where there actually was a floor discussion, if not a genuine debate -- but this objection is less compelling than those to the opposing reading of the statute. [Author's note: since publication of this article, yet another legal question has come to light. Since exercise of the taxing power is the constitutional underpinning of the National Firearms Act, and 18 U.S.C. section 922(o) forbids Treasury to receive taxes on post-1986 machineguns, has the latter statute removed the constitutional basis for the NFA? If so, charges might still be brought under 922(o)--but its penalty is half that assessed for a violation of the NFA].

2. Interstate Transportation of Firearms

In response to reports of hunters being arrested for firearms law violations while passing through a state with tight controls,488 FOPA's drafters inserted provisions to offer protection for such travel. S. 49 as introduced provided that any provision of state or local law "which prohibits or has the effect of prohibiting the transportation of a firearm or ammunition in interstate commerce through such state, when such firearm is unloaded and not readily accessible, [Page 677] shall be null and void."489 On the Senate floor, an amendment was accepted which changed this in two respects: (1) the protection was extended only to persons not prohibited by the Gun Control Act from transporting, shipping or receiving a firearm; and (2) the provision that an infringing law was to be null and void was dropped in favor of a simpler declaration that the transportation was allowed notwithstanding any such law.490 The rationale for the former change should be apparent. The rationale for the latter was a concern that, if the provisions that "have the effect" of inhibiting interstate transport were declared "null and void," entire sections of state law might be challenged and voided as to all purposes.491 In this form the provisions passed the Senate,492 and an identical provision was inserted in the bill that passed the House.493

Upon transmittal of the House bill to the Senate, the Senate passed both it and an amendatory bill, S. 2414, which greatly affected this section. S. 2414 narrowed the right of travel by providing that it was a right "to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearms"; moreover, both firearm and ammunition must not only be not "readily accessible" but also not "directly accessible from the passenger compartment."494 The restriction to transport to and from areas where the arms might be lawfully possessed was apparently a counter to criticisms that the bill might otherwise bar arrest of the owner in his own state, under that state's laws, if he argued he was beginning a permitted transportation.495 The second change was intended to rule out carrying in a glove compartment,496 which the Senate [Page 678] reports had indicated would qualify as "not readily accessible" under FOPA.497 On the other hand, S. 2414 seemingly widened the allowable transportation by requiring, not that it be "interstate commerce," but that it simply be "from any place" of lawful possession "to any place" of the same.498 The House passed the Senate bill without amendment.499

Enactment of S. 2414 does leave some questions unanswered. Fortunately, its late origin has given us a legislative history adequate to address most issues.

Accessibility

The first question is obvious: what is "not readily accessible"? We can easily discard the horrible hypotheticals raised during the House debates on FOPA, that a briefcase behind the seat would meet this test,500 or that "inaccessible in most cases probably means concealed."501 In practical terms, the requirement of inaccessibility is essentially subsumed in S. 2414's requirement that the firearm be stored outside the passenger compartment. If storage in a locked glove compartment was sufficient to meet the accessibility test, as the legislative history clearly indicates,502 the [Page 679] required storage outside the passenger compartment should clearly suffice.

Purposes

A second question is likewise obvious. For what purposes may the transportation be undertaken? FOPA itself had no requirements relative to the underlying purpose.503 Opponents of FOPA criticized this lack,504 but did not carry the day; a House amendment that would essentially have required that the transportation be for defined sporting purposes was decisively defeated.505 S. 2414 does insert a purpose requirement, but one far broader than that proposed unsuccessfully in the House; the transportation may be for "any lawful purpose."506 The omission of "sporting" or its equivalent is apparent and would suggest that the transporting party may intend any lawful purpose, including self-defense, at his or her destination.

Lawful Carrying at Origin and Destination

S. 2414 would require that the transportation be from an area where the person may possess "and carry" the arm to a place where he may do the same.507 This raises the question of what manner of carrying is being addressed. Carrying restrictions can vary; in some states concealed carrying is banned, while open carrying is subject to no regulation.508 Others require a permit to carry on or about the person, regardless of purpose,509 while others only restrict carrying for non-sporting purposes.510 The legislative history reflects an intention of a simple and pragmatic test: the transporter must be entitled to carry in the way he carries during the transportation; he must be legally qualified to carry an [Page 680] unloaded, inaccessible firearm outside a vehicle's passenger compartment both where he begins and where he ends his journey.511

Nature of the Transportation

The shift from transportation "in interstate commerce" to transportation from one "place" to another512 raises an initial question of whether intrastate trips through a locality with restrictive firearms laws might be covered. There is no explanation of the deletion of "in interstate commerce" in S. 2414's legislative history. On the more general question of whether it was intended to reach intrastate trips, the legislative history implies, but not unequivocally, that interstate trips remain the target. One Representative, for instance, mentioned that both FOPA and S. 2414 cover trips "in interstate commerce,"513 but received a response that travelers are protected "after they leave the boundaries of their state or local jurisdiction."514 The responding Representative then, only a few moments later, described S. 2414 as a protection "for interstate travelers."515 Conversely, even with its restriction to travels in interstate commerce, it had been suggested that FOPA would reach travel within a state.516 The better reading would probably be to restrict the coverage of this section to interstate commerce, particularly in light of the preamble's failure to make findings that protection of intrastate trips was necessary to a valid federal objective.517

CONCLUSION

FOPA's amendment of the Gun Control Act is both deep [Page 681] and wide-ranging. Congress clearly accepted that the alterations would be dramatic.518 Its deliberations extensively reflect judgments that repudiated either the Gun Control Act in toto or its administration as a traditional regulatory system.519

FOPA will require greatly increased sensitivity, efficiency and coordination on the part of the administering agency. Delays may run afoul of FOPA's various limitation periods; unjustified administrative inspections may clash with its restrictions on searches; a failure to coordinate with litigation teams may result in criminal adjudications that bar the agency from undertaking forfeiture or revocation; and unfounded actions, civil or criminal, may risk liability for the citizen's attorneys' fees.

Conversely, FOPA confers both substantive and procedural rights upon citizens accused of Gun Control Act violations. Scienter requirements limit application of most of the Act's sanctions to willful violators; a citizen who wins a criminal acquittal need not face civil sanctions based on the same allegation; the length of time sized property may be held without he