On the record before it Congress may reasonably find that the incidence of the use of handguns for criminal purposes among older juveniles is so great as to justify a prohibition on the sale of firearms (except for a shotgun or rifle) to all minors. In this respect Congress would follow the lead of many States which prohibit such sales, and in so doing this legislation would strengthen the enforcement of State laws.

See also Kentucky Whip, supra, 299 U.S. 334 at 347 and United States v. Darby, 312 U.S. 100 at 114 where it is said:

"Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the States for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the State has not sought to regulate their use." (Citing cases.)

"Such regulation is not a forbidden invasion of State power merely because either its motives or its consequence is to restrict the use of articles of commerce within the States of destination; and is not prohibited unless by other constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the States." (Citing cases.)

In a case construing the statutory controls over interstate shipment of gambling devices an opinion in which three justices joined indicated that the Court had not yet fully decided all constitutional questions relating to the power of Congress to require uniform registration, which would include registration by persons operating only intrastate, and of requiring information on strictly intrastate transactions. United States v. Gambling Devices, 346 U.S. 441. However, it seems clear from such cases as Hanf v. United States and Arrow Distilleries v. Alexander, supra, that were, in order to achieve effective regulation of interstate commerce, Congress deems it necessary or appropriate to require uniform licensing, it is within the congressional power to do so. By the same token, the cases would indicate that there would be no constitutional bar to imposing uniform requirements on persons federally licensed under laws arising from the interstate commerce power, where to except requirements as to intrastate transactions would tend to render ineffective the controls over interstate commerce. This concept would seem to be clearly within the scope of the Court's holding in McCulloch v. Maryland, supra, in its discussion of the latitude given Congress by the "implied power" clause in determining the appropriate means for achieving its purpose in regulating interstate commerce.

As the Court has repeatedly maintained, at least since Marshall's 1824 decision in Gibbons v. Ogden, 9 Wheat. 1, the only limitations on the congressional power to regulate interstate commerce are those found in the Constitution itself. If such limitations exist, they abide in the fifth and tenth amendments. Previously discussed Supreme Court cases conclusively show that the reservation expressed in the 10th amendment does not constitutionally bar Congress from enacting statutes which burden intrastate commerce or which amount to the exercise of police power, so long as this action is reasonable and necessary to effectively accomplish the interstate commerce regulation undertaken.

With respect to the fifth amendment, the Supreme Court has consistently held that where the subject of commerce is one as to which the power of the State may constitutionally be exerted by restriction or prohibition in order to prevent harmful consequences, the Congress may act to restrict or prohibit interstate commerce relative to the same subject without violating the due process of law. Kentucky Whip & Collar Co. v. Illinois Central Railroad Co., 299 U.S. 334, 351; United States v. Darby, 312 U.S. 100, 125; Heart of Atlanta Motel v. United States, supra.

It is concluded that the provisions of S. 1592, designed to amend the Federal Firearms Act, are constitutional as within the power of Congress to regulate interstate and foreign commerce and are subject to no limitation prescribed in the Constitution. The act and the proposed amendments thereto are intended to regulate interstate and foreign commerce in firearms. The fact that there is also intended some incidental regulation of intrastate commerce does not invalidate the proposed legislation. Although the regulation of firearms traffic under the proposed legislation may have some characteristics of the exercise of "police power," it is not an usurpation of a power reserved to the States by the 10th amendment; and it is not violative of the due process clause of the fifth amendment.

51-635-65-pt. 1——7

The CHAIRMAN. Mr. Attorney General, we thank you, sir, for coming to the committee and for the statement you have made on the matter. Any questions?

Mr. ULLMAN. Mr. Chairman.

The CHAIRMAN. Mr. Ullman.

Mr. ULLMAN. Mr. Katzenbach, your testimony is very helpful. Certain features of this bill bother people like me who come from an area where most everyone is a hunter and where we encourage our young people to learn to shoot at an early age, and where we have very little of the difficulties that you mentioned in the way of crime as a result of the availability of guns-although we don't question many of the objectives of the bill.

I think everybody agrees that we should tighten up on the sale of bazookas, and antitank guns, and concealed weapons, too, but we have a great deal of skepticism about regulations with respect to rifles and shotguns.

In your testimony you have cited many instances where firearms have been involved in all kinds of crime. How does that break down between concealed weapons and rifles and shotguns?

Mr. KATZENBACH. Rather surprising in a way, Congressman, because 30 percent of those were committed with rifles and shotguns. Mr. ULLMAN. Thirty percent of what?

Mr. KATZENBACH. Thirty percent of the murders in this country, the killings by firearms, were actually done with rifles or shotguns, a higher figure than I would have anticipated; about 70 percent with handguns.

Handguns is the bigger of the problems, but the rifles and shotguns have been an increasing problem. I think it is largely often a juvenile problem. Kids order these guns. They can order them through the mail. There is no check made whatsoever on their age.

We have provided, on that, an 18-year-old limit on the purchase. It has nothing to do, Congressman, if you or I want to purchase a gun and make our son responsible for it, allow him to go hunting with it, at whatever age you feel he is able to manage that gun. There is nothing in the bill to stop him.

The only thing you stop is you can't send your 12-year-old down to the store and say, "Buy a gun." You have to go along with him and you have to buy the gun and you have to indicate the responsibility of at least an 18-year-old for the purchase of the gun.

There is nothing here that prevents the younger person from using guns, from going shooting with or without his parents, but there is that check on his ordering a gun through the mail without his family knowing about it, if he has one, or anything of that kind, or even going and purchasing a gun unless he is 18 years old and can establish it.

We have had these instances of young people ordering guns. I am sure you read about them in the paper. They go and then they sit up beside the highway, in one recent case, with a rifle and begin shooting at people, and two or three people were killed I guess before that police caught up with this juvenile; just gone a little bit beserk. Mr. ULLMAN. Mr. Attorney General, are you saying that 30 percent of the deaths that were violently inflicted were by the type of shotguns and rifles that you would normally use in sports activities? Mr. KATZENBACH. Yes.

Mr. ULLMAN. This doesn't include machineguns and other such things.

Mr. KATZENBACH. No, I wasn't including machineguns or bazookas; rifles and shotguns only.

Mr. ULLMAN. What kind of crime are we talking about? Whenever we read in the paper about holdups of liquor stores

Mr. KATZENBACH. I was talking about murders.

Mr. ULLMAN. I am wondering what examples and what kind of crime. The normal criminal when he goes to hold up a place usually relies on concealed weapons, does he not?

Mr. KATZENBACH. That is correct.

Mr. ULLMAN. And we read so little about crime involving rifles and shotguns I am just wondering what kind of criminal activity we are talking about?

Mr. KATZENBACH. I think we are probably not talking by and large about people who go and hold up gas stations or liquor stores, but I think mostly they use concealable weapons when do it. I think there are probably some exceptions to that, particularly among the young and inexperienced who have gotten hold of whatever kind of weapon they may have gotten that they may have used in that.

I think we are often talking about shootings that occur in a family context as a result of a family argument of some kind where a child kills his parents and parents kill children, sometimes accompanied by suicide and that sort of thing.

We are also talking about some of the crimes that have occurred recently where young people have gotten hold of a gun and decided just to go shoot somebody for the heck of it.

Mr. ULLMAN. In other words, we are talking about the hardened criminal or the crime syndicates of organized crime or we are generally talking about concealed weapons or beyond that machineguns, something like that.

The type of crime that involves rifles and shotguns then would not really be premeditated crime. What you are saying is that this is the kind of thing that involves temporary insanity or family arguments or personal feuds or this kind of thing where rifles and shotguns are involved, is that right?

Mr. KATZENBACH. More often than not that is true. One of the major points to be made on this legislation, Congressman, is, sure, some of your major criminals are going to be able to get guns if this legislation passes and irrespective of what is done. It will make it a little harder for them to get them.

I suppose really hardened criminals are going to get them. One of the purposes of this is to take guns away from people who might not otherwise become criminals or if they otherwise became criminals they at least wouldn't use guns to kill somebody in the process of doing it.

I think that has been true to some extent on murders with shotguns and with rifles. I mean, take the assassination of President Kennedy, as one example of a man who ordered a weapon, rifle, through the mail, shot the President of the United States, went back and got a pistol that was not illegally obtained, but obtained through the mail.

Mr. ULLMAN. But of course there is nothing in this legislation that would have kept someone who wanted to shoot a President from getting a rifle. Isn't that right?

Mr. KATZENBACH. Yes, there is, I think. He couldn't have ordered it in that fashion. If he wanted to get the rifle at least he would have had to have gone to a gun store, and identified what State he came from and given his age.

Mr. ULLMAN. But this man had his rifle many weeks or months, or many weeks, anyhow, before the killing, and under this legislation he still could go out and purchase a rifle.

Mr. KATZENBACH. Yes, he could. It would be a little more difficult, Congressman. I think people when they can order it anonymously under a false name, using a catalog, that kind-the catalog itself in a way is inciting-they are willing to do this, but when they have to go into a store to do it and face somebody face to face when they do it, I think there is a hesitation on their part and they are worried about it.

Unless they are legitimate and they want it for legitimate reasons I think there are at least some deterrents there. It doesn't make it impossible. The fact that it doesn't make it impossible doesn't say that it would not deter them.

Mr. ULLMAN. Insofar as the regulation on shotguns and rifles is concerned in this legislation it is my understanding, first, you have deleted the ammunition provision, is that right, or you were going to offer an amendment to the bill.

Mr. KATZENBACH. Yes, on the licensing. There was a fairly high licensing fee for dealing in ammunition.

Mr. ULLMAN. Except for the home loaders now it will not be involved in any way.

Mr. KATZENBACH. That is right.

Mr. ULLMAN. They would have been in the bill that you originally presented.

Mr. KATZENBACH. That is right.

Mr. ULLMAN. But you have taken that out of the bill. Then insofar as rifles and shotguns are concerned, first you have the mail-order provision that would prohibit the interstate shipment of these things? Mr. KATZENBACH. Yes.

Mr. ULLMAN. Is that the most important feature that regulates shotguns and rifles?

Mr. KATZENBACH. That plus the importation; yes.

Mr. ULLMAN. Then the second provision would be the juvenile one. Mr. KATZENBACH. Yes.

Mr. ULLMAN. Whereby in the case of rifles it would be under age 18, wouldn't it?

Mr. KATZENBACH. Simply on purchase, Congressman, not on use, not on possession, not on anything other than purchase.

Mr. ULLMAN. I am not convinced that that is going to accomplish very much. In other words, the young man that wants a rifle simply can ask somebody over 21 to buy it for him now or even under your Mr. KATZENBACH. Eighteen.

Mr. ULLMAN. Over 18, that's right. Anyone over 18 could buy it for him, so it wouldn't really restrict the person who did have any tendency to use the rifle for other than legitimate means, would it?

Mr. KATZENBACH. I think so, Congressman; yes. In our efforts to be fair to the sportsmen we have tried not to put in any burdensome requirements. For that reason it doesn't absolutely prevent things, but again I think it deters them.

I think when a 15-year-old wants to get a gun and he has to find a friend who is 18 or over, if his dad won't let him have it, and he has to go down to the store to buy a gun or go to a store to buy a gun, I have a lot of respect for dealers in firearms when they are seeing people face to face and I think under the circumstances that you hypothesize there that the dealer might give his dad a ring over the phone and say, "I wonder whether you know about this."

Mr. ULLMAN. Have dealer requirements insofar as keeping records of to whom he sells the firearms been changed under your proposal? Mr. KATZENBACH. No; there is nothing in the bill that changes that at all.

Mr. ULLMAN. Existing law requires that they keep a record, is that right, of who they sell fireams to?

Mr. KATZENBACH. Yes.

Mr. ULLMAN. And they don't have to know the party that they sell it to, do they? If you want to go in and buy a rifle the dealer just takes your name and address, is that right?

Mr. KATZENBACH. That is right.

Mr. ULLMAN. He doesn't have to know the purchaser or have identification necessarily.

Mr. KATZENBACH. No; he has to prove he is over 18 or over 21. Mr. ULLMAN. Under your proposal that is the only change, that they would have to prove they were over 18.

Mr. KATZENBACH. They would have to show their residence too because they can't buy a handgun in another State, show their residence, their driver's license, or something.

Mr. ULLMAN. Besides these interstate shipments and the juveniles, then the only other restrictions insofar as rifles and shotguns are concerned would be availability of surplus military weapons?

Mr. KATZENBACH. That's right.

Mr. ULLMAN. Doesn't this exclude the type that you would normally use for sporting?

Mr. KATZENBACH. Yes.

Mr. ULLMAN. In other words, there would be no restrictions on surplus military weapons that could be used for hunting, is that right? Mr. KATZENBACH. Those weapons are not normally the weapons you use for hunting. There would be regulations on surplus military weapons as such, not on sporting weapons as such, but there would be if you say a surplus military weapon could be used for sporting

purposes.

Mr. ULLMAN. I thought I saw in your requirements that a certain caliber could be used for hunting or some such thing. You don't have any exceptions?

Mr. KATZENBACH. Not for surplus military weapons.

Mr. ULLMAN. That isn't particularly an important item. Then that would pretty much cover the regulation on rifles and shotguns except the dealer regulations in which you would probably limit the number of dealers under your recommendations, wouldn't you?