Senator HAYDEN. I now introduce Mr. Ben Avery, an outstanding member of the staff of Arizona's leading newspaper and a member of the National Rifle Association. His testimony will be based on years of experience on how the use of firearms is of benefit to our Nation.

Mr. Avery.

Senator CANNON. Mr. Avery, we are happy to have you appear here today.

THE

STATEMENT OF BEN AVERY, SECRETARY-TREASURER, ARIZONA REPUBLIC, PHOENIX, ARIZ., REPRESENTING THE ARIZONA STATE RIFLE & PISTOL ASSOCIATION

Mr. AVERY. Thank you, Mr. Chairman, and thank you, Senator Hayden.

Gentlemen, I would like, first, to thank you for the opportunity to appear here to help stem the tide of unreasoning emotionalism aimed, apparently, at disarming the American people because of a tragedy that all of the laws in the world could not prevent.

I have served as chairman of the committee in Arizona for the past 17 years that has written all of our State laws. This committee is composed of law enforcement officers, members of the American Legion, the county attorneys, as well as the National Rifle Association members.

I would like to apologize for changing my statement text. However, only in the last few days has it been possible for me to learn what has been happening here in Washington. I am sure that millions of other Americans are deeply interested in what is going on here, know even less, because as a newspaperman I write about such things every day and see the wire service. I am sure that those who propose having the American people apply to the alcohol and tobacco tax office for an affidavit form, then fill it out and have it notarized, do not realize what real hardship and inconvenience a law such as this could impose on a large segment of our population.

I hope my testimony can point up how this law would be a real restraint of trade and imposition on millions of rural residents of our Nation who would have to comply with it because they are honest citizens, while the criminal would not be affected because his profession is breaking the law.

I firmly believe that the citizen who would be hurt by this law does not realize what it would do, nor how it would be administered. However, throughout the West, and in many Midwest and Eastern States, millions of rural residents still order many of the articles

Senator THURMOND. Mr. Chairman, I can't hear the witness.

Senator CANNON. Mr. Avery, would you pull the microphone a little closer, please.

Mr. AVERY. Yes, sir.

We have one corner of Arizona where the people cannot even buy anything from their county seat without having it sent through another State because they are cut off by the Grand Canyon. Most of them even have to buy their clothes and food in Nevada or Utah.

Throughout these rural areas, many people do not go to town more than three or four times a year. The star route mailman brings them most of their needs, or they send to town by neighbors for needed.

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items. To these rural Americans, the gun still is an implement of protection of their persons and property against wild animals, and for supplementing their larder. In Alaska, which I have visited, I wonder how you would explain to one of the natives who lives 1,500 miles from the nearest store, that he would have to go to town and fill out an affidavit to order a gun by mail.

But even for the residents of small towns in America, have you considered how the law-abiding citizen will be able to easily get a form from the Alcohol and Tobacco Tax Unit-an agency that most of them never even heard of; do you know how discouraging it is now sometimes to get a form and apply for and get a license as a dealer in such areas?

I would urge this committee, before passing such a law, to hold hearings throughout the country so more of the affected honest citizens can learn what this bill would do. I believe it is time for Congress to look behind the Federal Firearms Act and the National Firearms Act. In the light of the number of arrests made under them, examine the effect they have on our country, because everything has changed since the 1930's, when they were enacted, mainly to deal with the gang wars that resulted from the prohibition era. That era is gone now-its warlords wiped out mainly for violating income tax laws, not the Federal or National Firearms Acts.

But we have other problems. The other day a friend of mine in Scottsdale, Ariz., bought an AR-15 and some thousands of rounds of ammunition from a firearms company and he is having a ball firing it full automatic at targets out in the desert against a sandbank. I think he told me he paid $175 plus a $200 transfer tax on it. That is less than my 30-06 match rifle cost. But this man was harming no one, nor was he disturbing anyone. He was shooting on his own land. If this should become a problem in Arizona, we can handle it by State law.

However, for the past few years, I have been captain of our State rifle team. Now, this is a job that Senator Hayden once had. We haven't been doing as well as he did, however. And the Alcohol and Tobacco Tax Unit will not even allow us to train citizens of good repute in the use of our present service rifle, the M14, after it is welded so it will not fire full automatic. It seems there is a technicality in the wording of the law which in referring to automatic weapons includes "or weapons manufactured for automatic fire."

There is no question that our service rifle of the future must have full automatic capability, but if we are not to permit training of civilians in the use of the service rifle, our country will be seriously weakened when an emergency comes.

The National Rifle Association executive committee has expressed its belief that the bill as now amended complies with the standards for legislation established by the National Rifle Association. From my long experience in this field, and as a member of the committee that drafted the NRA policy statement, I must disagree wholeheartedly, and I hope also that after more study of the effects of the bill as amended, Mr. Orth also has changed his views.

With that preface, I would like to discuss the bill.

First I would like to say that it is evident that Mr. Orth and other members of the staff of the National Rifle Association, and Senator

Thomas Dodd, of Connecticut, the principal sponsor of this bill and the members of Senator Dodd's staff have worked long and hard in an effort to come up with a constructive piece of legislation. And much that has gone into this bill before the recent tragedy constitutes a definite improvement in the wording of the Federal Firearms Act.

Actually, this bill, if the copy I was furnished for study is correct, has only two bad spots. One was enacted in the October 3, 1961, amendment, and the other is the amendment now under study aimed at curbing sales of firearms by mail.

I would like to take up the 1961 amendment first, and explain why, in the opinion of the Arizona State Rifle and Pistol Association, the Governor of Arizona, and every American citizen I have explained this provision to, feels that it is bad.

The 1961 amendment, in my opinion, violates the spirit if not the letter of many State constitutions, and comes under the heading of one of convenience to the law enforcement officer and makes law-abiding citizens unwitting violators contrary to NRA policy stated as follows:

The NRA is opposed to legislation which denies, or interferes with, individual rights of our citizens or is designed purely for the convenience of law enforcement officers or for the purpose of circumventing the due process of law in order to obtain convictions more easily. The desire to see our laws adequately enforced is not justification for any law which makes a prudent, law-abiding citizen an unwitting violator, or which denies the right of self-defense.

The amendment changed the scope of the Federal Firearms Act from applying to a specific group that included fugitives and persons that had been convicted of a crime of violence, which was defined in clear terms as

murder, manslaughter, rape, mayhem, kidnapping, robbery, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than 1 year.

In the place of that definite and reasonable statement of scope, the amendment extended the law to cover fugitives, and persons under indictment for or who had been convicted of a "crime punishable by imprisonment for a term exceeding 1 year."

Gentlemen, our Constitution attempted to protect the citizen from an all-powerful police. The principle that every man is innocent until proven guilty is the foundation of our individual freedom, but the 1961 amendment, and this bill as it is written would destroy this principle. Under the bill, a person under indictment, even though a year or 2 years later a jury might find him not guilty, would be subject to prosecution, conviction, and the full penalties of the law for receiving a firearm he might have ordered even before the indictment. Therefore, I plead with you to eliminate the words "who is under indictment or,' wherever it is used in the bill.

As for the all-inclusive

any person who has been convicted by any court of a crime punishable by imprisonment for a term exceeding 1 year—

gentlemen, I cannot believe that this language has been given careful study, though I note that it has been given some study since the 1961 amendment when it first was adopted, because you have excepted

offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.

Apparently someone from the business community has appeared to argue for businessmen.

I would like to put in a word for the ordinary citizens of America. People may overdraw their checking account or in desperation write a bad check. During the great depression I know of a good many_who resorted to theft when their wives and children were hungry. I am sure that all of us know of cases within our acquaintance of young men who made mistakes, pleaded guilty to charges involving car theft, embezzlement, or other such crimes, and were granted probation and without spending a single day in jail, lived down their mistakes and became respectable citizens. Arizona had a State attorney general who once pleaded guilty to a bad check charge and actually served 30 days in California at a time when this charge was a misdemeanor, but today it is a felony. What would be his status now since the penalty for that crime is different?

I would like to urge the committee to return to the previous language, and make the basis of the scope of this bill crimes of violence that are specifically enumerated. They could be expanded from the previous list if necessary.

In this regard also, there should be some limit on the number of years a person should continue to pay for a mistake. In our State, indeed under most jurisdictions, the statute of limitations forbids prosecution of a person committing an ordinary felony unless prosecution is commenced within 5 years after the crime is committed. But under this law a person would wear the label felon to his grave, even though he paid the full penalty imposed by law 40 years ago and led an exemplary life.

As a practical matter, it is a common practice for persuasive prosecutors to talk accused citizens into entering guilty pleas as a means of avoiding publicity and expense of trial by promises of light sentences or even probation, when the accused might have won acquittal.

So I appeal to you for fairness for all of our citizens, not just the business community. If any law you enact is to be enforceable and of any benefit to the Nation it must be fair.

I commend you for taking out the presumptive evidence of guilt that is associated with mere possession in the present law, as this was a definite step toward fairness.

Now for the second bad feature of the bill-the requirement that the chief law enforcement officer in the purchaser's community be sent a copy of an affidavit that must contain a description of the firearm coupled with the purchaser's complete description.

I have checked with our local law enforcement officers to determine if this would be a workable law. They are unanimous in saying it would be of no benefit in preventing delivery of firearms to persons not legally entitled to receive them. They concur with me that it would only provide the beginning a foot in the door, if you please for firearms registration in America. Under Arizona law, written consent of a parent or guardian is required for delivery of a firearm or ammunition to a person under 18. Our law prohibits possession of pistols by persons convicted of crimes of violence as defined by the Federal Firearms Act prior to 1961 until they are pardoned. They say that the enforcement of this new provision would require sending an officer to check each purchaser. They already are shorthanded and need their men for more important duties.

Our law enforcement officers do not believe in registration, but they declare that many would use these affidavits to start a registration file on firearms purchased in their area, and they are certain that it will only lead to demands for more amendments to make it stronger and more complete. So, it would only be a foot in the door for complete registration and police permits to purchase firearms.

This law has effectively disarmed the British people.

This provision is dangerous from another standpoint. For two years now in Arizona we have had a law permitting service of summons, subpena, or other legal notice by registered mail, return receipt requested. Our sheriffs have asked this year that it be changed, because so many merely refuse to accept delivery of such letters. Any chief law enforcement officer who might get the dictatorial desire to prevent delivery of firearms to citizens in his jurisdiction could do so merely by refusing to accept such registered letters.

At a meeting with legislative representatives of our Arizona Association of Sheriffs and County Attorneys in connection with a statute we are working on to impose mandatory minimum sentences for violent crimes in which firearms are used-last Friday we discussed this problem. It is our feeling in Arizona that if Congress merely required common carriers to comply with State laws when delivering packages containing firearms, the Federal Government's role would be accomplished.

Regulation of the use of firearms is a State matter. In Arizona, the Alcohol and Tobacco Tax Unit of the Treasury Department has two men, Murray White and Al Reed. It is from this office Arizonians would have to obtain this affidavit form. But these two men have the whole State to cover and most of their work deals with other laws. I have been trying to reach them for several weeks but have never been able to find either one in the office, and they do not even have a secretary. In the whole country, I do not believe enough arrests have ever been made under the Federal Firearms Act to justify its existence. And, as is always the case with such laws, someone is always trying to make them stronger so they will accomplish something that is usually impossible to accomplish by statute anyway. In this case I mean keeping firearms out of the hands of criminals by statute.

In my years of experience as a police and court reporter for newspapers, I don't think I ever saw a criminal who would bother filling out an affidavit as prescribed by this bill, sending it in with an order accompanied by money he could be spending on his girl friend or on booze, then waiting to get the gun he ordered to pull a robbery, or commit any other crime. He would either use some other weapon, steal a gun, or buy or borrow one locally. And there is no law you can enact and enforce that would stop him.

We tried a law in Phoenix once that required a police permit to purchase a pistol, a 48-hour waiting period, and prohibited sale to criminals and other so-called undesirables. It was in force for a year, and we had one case where a robber caught in California admitted that he got a police permit in Phoenix to buy his gun 3 days before. At the same time, however, the police abused their authority so flagrantly to turn down honest citizens, that 1 year after the ordinance was enacted, the chief of police, Earl O'Clair, recommended that it be repealed, and it was.

And Earl O'Clair, now retired, told me that I could assure