presently being pursued in various municipalities and state capitals in large part as the result of their activity. We reflect that drive in Washington to help passage of effective legislation.

Our presence on the national scene is the direct result of a crisis in our midst brought about by the proliferation of the handgun. The handgun, the favorite, concealable weapon of the criminal, is increasingly understood by citizens everywhere as having the dominant role in violent crime. Citizens increasingly are feeling the traumatic effect of the handgun on their lives. Subcommittee members know the situation. The police are aware of it in all its grim reality; so are hospital personnel. The same holds true for families and friends of victims and for the victims who are fortunate enough to survive a confrontation with a handgun. In sum, the American public is aware, and they are looking to Congress for leadership. The offending article-the handgun-is now in plain sight for all to see all 40 million of them and 221⁄2 million more coming into circulation each year. There will be no relief from this tremendous, misguided arms build-up until Congress acts to stop it.

Because of the seriousness of the handgun threat, NCCH urges this Subcommittee to act to meet the crisis. Two basic steps must be taken to control handguns.

First, the spigot must be turned off; that is, the manufacture, importation, sale, transfer of handguns must be made illegal (except for police, military, licensed security guards and licensed pistol clubs).

The second step must be positive action to reduce the number of pistols and revolvers already in circulation. For this purpose, a buy-back of all handguns (except deactivated antiques and those exceptions noted above) should be conducted by the Federal government for a period of time. After this period of time, the use, ownership or possession of such weapons would be illegal.

The Hart-Bingham Bill (S. 750 and H.R. 40) would substantially accomplish the above objective and is strongly endorsed by NCCH, though, of course, we also support incremental legislation that works toward the basic goal of reducing the number of handguns in circulation.

NCCH does not support legislation that would merely register handguns or license their owners, attempting only to keep handguns from being lawfully owned by relatively narrow categories of persons such as convicted criminals and drug addicts. Such registration proposals do little to reduce the tremendous number of handguns in circulation and consequently do not significantly reduce the availability of handguns to those who, in passion or premeditation, seek a weapon with which to commit a violent crime. Handguns will inevitably move from qualified owners to illegitmiate owners by sale or gift and by loss, thefts, or unauthorized use (e.g., the teenager's secret use of his father's or mother's lawfully registered pistol). Moreover, even normally law-abiding citizens do, in moments of rage, sometimes assault family members or friendswith the seriousness of the attack often depending on how deadly a weapongun, knife, fists-is readily available for use in the attack. Under a registration regime, it is surely true that the criminal will always be able to get a gun.

NCCH supports strong, consistently applied penalties for criminal misuse of handguns. We do not, however, believe that such penalties can ever be the foundation of an effective handgun control strategy. Because of the dismal condition of the criminal justice processes in this country, too few violent criminals find themselves convicted of crimes and subject to judicial sanctions. If, as the Eisenhower Commission found and as later studies confirm, only about 5% of serious crimes result in the conviction of the perpetrator of the crime, it is obvious that the odds of escaping punishment altogether are so much in favor of the criminal that he will not be deterred-even by the most severe penalties-from using a handgun to facilitate his criminal act.

The NCCH takes no position regarding the regulation of rifles and shotguns. Handguns, because of their ease of concealment, are a far more serious problem than long-guns. In 1972, handguns accounted for 82% of all homicides using firearms. In 1967 (the latest year for which figures are available), handguns accounted for 86% of all serious assaults involving firearms and 96% of all robberies involving firearms. Moreover, long-guns, much more than handguns, are legitimately used by some 20 million hunters in the United States. NCCH respects the rights of genuine sportsmen and sportswomen and has no hidden agenda in the field of long-gun control.

Recommendations for changes in current legislation frequently produce challenges that the proposals are unconstitutional and unenforceable. In this in

stance, we believe ample precedent exists to provide a solid legal basis for all legislation currently under consideration by the Subcommittee, including the more effective measures we support. We are attaching an opinion of our counsel speaking to some of the more salient areas of constitutional concern. Our counsel has indicated a willingness to work with the Subcommittee Staff on these and other areas of inquiry if the Subcommittee wishes.

Advocates our our position often find themselves challenged on economic terms-the cost of handgun control. We acknowldege that extra costs are involved, but we ask Subcommittee members to think of the tremendous cost of handgun crime, both direct and indirect. Is this not where we must begin?

The most consistently urged objection to a control strategy that involves virtual abolition of handguns among the population at large-as NCCH urgesis that homeowners need handguns for self-protection. As a practical matter, however, the homeowner rarely has the opportunity of confronting an intruder with his handgun at the ready: the intruder bent on robbery or rape has the advantage of surprise and is typically the first one to bring his handgun into play, while the burglar relies on stealth and is likely to flee if his presence is known. And if a homeowner should insist upon arming himself and trying to do battle with intruders, a rifle or shotgun is a preferable substitute defensive weapon. (The intruder, of course, cannot effectively use a long-gun.) In sum, the self-defense argument does not, upon examination, offer any persuasive reason for failing to pursue a control strategy aimed at drastic reduction of handgun availability.

To understand NCCH's position on handgun control, the Subcommittee should realize that NCCH has, in an important sense, picked up the flag from the Eisenhower Commission on this issue. NCCH was founded by individuals who had studied the Eisenhower Commission findings on handgun violence and were persuaded to action by what they read. The founders have now been joined by Dr. Eisenhower himself and by Lloyd Cutler, the Executive Director of the Violence Commission, both of whom are actively serving as advisers to NCCH. NCCH's handgun control efforts are also sponsored by Albert E. Jenner, Jr., who was one of the most active, valuable members of the Eisenhower Commission. Another outstanding Chicago attorney and NCCH sponsor is George D. Newton, Jr., who was the Director of the Task Force on Firearms and Violence of the Eisenhower Commission.

These Eisenhower Commission veterans are involved in the NCCH effort because of their earnest conviction, based on careful study of the facts, that handgun control may well be one of the few practical, achievable steps that can produce short-term results in reducing violent crime. The Eisenhower Commission concluded that: "The heart of any effective national firearms policy for the United States must be to reduce the availability of the firearm that contributes the most to violence. . . . We believe, on the basis of all the evidence before us, that reducing the availability of the handgun will reduce firearms violence." A serious national effort at handgun control can be expected to retard the rise of violence in our cities. At a minimum it will save many lives and reduce the degree of bodily injury associated with violent crimes such as robbery and aggravated assault.

Moreover, a national commitment to effective handgun control could have effects of an intangible nature-a change of mood-that could make this a safer nation. It could signal a refusal by the people any longer to tolerate the shameful lack of public safety in our cities, and a new determination to do something constructive about this appalling situaton. If, indeed, handgun control were to succeed in somewhat improving the safety of Americans, then our citizens might be encouraged to put aside their cynicism and despair over the "crime problem" and support the other governmental measures necessary to get at the causes and consequences of violence.

When Milton Eisenhower personally presented his Commission's voluminous Final Report to President Nixon in December of 1969, with its many recommendations on a variety of subjects, he made strict handgun control his final point-saving for last the recommendation that he wanted most to emphasize. He did this because he felt the symbolic importance of the handgun control issue, as well as its practical effect in saving lives.

If we can, as a nation, effectively give up these weapons-as individuals, sacrifice whatever psychic gratification we obtain from having and holding these private instruments of destruction-then we will have turned aside from the foolish, selfish course that is leading to ever greater violence and the con

sequent exacerbation of many other social problems. Then other steps may follow-improvements in the criminal justice system, in education, in jobs, in

housing.

These are all much greater challenges posing questions that we do know how to answer or calling for expenditures that may be beyond our means. By contrast with these vast and complex issues, the handgun problem is simple and manageable.

NCCH is greatly encouraged by the rising tide of sentiment in favor of stricter handgun controls. The evdence of public support for prompt, effective federal handgun legislation can be seen in the media, in public opinion polls, and in the blossoming of handgun control groups around the country, and in the positions of many large multi-issue organizations. We believe that there will be action on handguns by this Ninenty-Fourth Congress, and we look to this Subcommittee to begin that process by reporting the strongest and most effective bill that it can.

COVINGTON & BURLING, Washington, D.C., July 21, 1975.

MR. EDWARD O. WELLES,

Executive Director,

National Council to Control Handguns,

Washington, D.C.

DEAR MR. WELLES: In accordance with the request of the National Council to Control Handguns (the "Council"), we have examined the numerous bills now pending before the Crime Subcommittee of the House Judiciary Committee presenting varied approaches to the growing problem of handgun crime in the United States for the purpose of identifying possible areas of constitutional challenge to such legislation. These bills fall into the following general categories:

(1) Bills Imposing Increased Criminal Sanctions: These bills generally make it a separate federal crime to commit a federal and/or state felony with a handgun and, in certain instances, impose limitations upon the courts (requiring the imposition of minimum consecutive sentences) and probation officials (limiting the availability of parole) in their treatment of persons convicted of commiting such crimes with a handgun.1

(2) Bills Requiring the Registration and Licensing of Handguns: These bills provide for either a federal registration and licensing system or federal approval of a state registration and licensing system for handguns and, in certain instances, other firearms; the bills also prohibit possession by or sale to a person not possessing a license or permit and establish sanctions for violation of these provisions.❜

(3) Bills Prohibiting the Importation, Manufacture and Sale of the "Saturday Night Special": These bills would establish prohibitions on the importation, manufacture and sale of certain cheap and easily accessible handguns commonly known as "Saturday Night Specials"; these handguns would be identified on the basis of certain specified physical characteristics and capabilities.3

(4) Bills Prohibiting the Importation, Manufacture, Sale, Purchase, Transfer, Receipt and Possession of Handguns Generally: These bills would prohibit the importation, manufacture, sale, transfer, receipt and transportation of handguns except for specified purposes; in addition, certain of these bills would prohibit the possession of handguns and would provide reimbursement to per

1 Examples of such bills include H.R. 1136, H.R. 486, H.R. 3223, H.R. 465, H.R. 3772, H.R. 6056, H.R. 4851, H.R. 5734, H.R. 3627, H.R. 6201, S. 216. H.R. 5379, H.R. 2075, H.R. 452. H.R. 510. H.R. 524. H.R. 3325, H.R. 4011, H.R. 4635, H.R. 4361, H.R. 5292, H.R. 5672, H.R. 4890, S. 142, H.R. 3757, H.R. 5538. H.R. 5889. H.R. 4894, H.R. 5561, H.R. 4633. H.R. 3882, H.R. 4759, H.R. 4760, H.R. 5237, H.R. 4310, H.R. 3391, H.R. 4281, and H.R. 5638.

2 Examples of such bills include H.R. 354. H.R. 2433, H.R. 5132, H.R. 626. S. 1447 and H.R. 1685. Certain of these bills (for example. Congressman Drinan's H.R. 5132) combine registration and licensing with prohibitions on the importation, manufacture and sale of the so-called "Saturday Night Special".

3 Examples include H.R. 267, H.R. 3021, H.R. 3773, H.R. 4557. H.R. 4283, H.R. 2433, H.R. 1685 and H.R. 706. As noted above, certain registration and licensing bills (for example. H.R. 5132 and S. 1447) also contain such provisions. The "Saturday Night Special" provisions of Senator Kennedy's bill. S. 1447, also prohibit the transfer, receipt, transportation and purchase of such weapons.

sons presently owning handguns who would be required to deliver such weapons to appropriate law enforcement agencies.*

Our conclusions with respect to areas of potential constitutional challenge are set forth below.

I. THE SECOND AMENDMENT

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Opponents of federal gun control legislation have long contended that the Federal government cannot proscribe private possession of guns or prescribe conditions to such possession. Citing the Second Amendment, such persons alternatively contend (i) the plain language of the Amendment itself confers a right upon individuals to keep and bear arms and (ii) even if the Amendment does not itself confer a right to individuals to keep and bear arms, it nevertheless prohibits the Federal government from prohibiting the possession of arms. Each of these contentions are discussed below.

A. The Second Amendment Does Not Confer Upon Individuals the Right to Keep and Bear Arms. The argument that the Second Amendment confers an affirmative and basic right to keep and bear arms upon individuals as such has been considered and rejected by the United States Supreme Court. The Supreme Court first considered this contention in United States v. Cruikshank, 92 U.S. -542 (1875). In Cruikshank, the defendant and others had been convicted of conspiracy under Section 6 of the Enforcement Act (16 Stat. 140) in that they, inter alia, conspired to hinder and prevent two United States citizens “of African descent and persons of color" from the free exercise of their "right to keep and bear arms in a peaceable manner." Section 6 of the Enforcement -Act provided:

"That if two or more persons shall hand or conspire together, or go in disguise upon the public highway, or upon the premises of another, with the intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoy. ment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony. . . (Emphasis added).

The Supreme Court consequently concluded that to bring the case under the operation of the statute, the right the enjoyment of which the conspirators sought to hinder or prevent must be a right granted or secured by the Constitution or the laws of the United States. Noting that the Federal government was a government of limited powers and that no rights could be acquired or secured under the Constitution except those which the Federal Government had the authority to grant or secure, the Supreme Court found that the right to bear arms peaceably was not such a right, stating:

"This is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government. . . ." 92 U.S. at 553.

The Supreme Court confirmed this conclusion in three subsequent opinions. See, Presser v. Illinois, 116 252, 265 (1886); Miller v. Texas, 153 U.S. 535 (1894), and United States v. Miller, 307 U.S. 174 (1939). In United States v. Miller, the defendant had been indicted for transporting a sawed-off shotgun in interstate commerce in violation of the National Firearms Act. The defendant contended, inter alia that the statute was unconstitutional under the Second Amendment. Noting that no proof had been presented that the weapon was any part of ordinary military equipment or that its use could contribute to the common defense, the Supreme Court remanded the case, reversing a lower court decision which had declared that the statute violated the Second Amendment. Implicit in the Court's action was a reaffirmation of its holding in Cruikshank-that the Second Amendment itself conferred no right to the

These bills include H.R. 40, H.R. 3202, H.R. 3154. H.R. 354, H.R. 1601, S. 750, H.R. 638. H.R. 3532, H.R. 2313, H.R. 3086, H.R. 1904, H.R. 2911, H.R. 1533, H.R. 3194, H.R. 3504 and H.R. 1187. As noted above, these bills fall into two subcategories-those which simply curtail importation, manufacture and sale and those which also attempt to deal with the existing handgun "population" by banning private ownership of handguns. The former category, although prohibiting private ownership, would combine a prohibition on importation, manufacture and sale with a funded voluntary turn-in program.

individual to keep and bear arms. This position has been consistently reaffirmed by Federal district and appellate courts. See, e.g., United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Cody v. United States, 460 F.2d 34 (8th Cir. 1972); United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971); United States v. Lauchli, 444 F.2d 1037 (7th Cir. 1971); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); Stevens v. United States, 440 F.2d 144 (6th Cir. 1971); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. den. sub nom. Valasquez v. United States, 319 U.S. 770 (1943), rehearing den., 324 U.S. 889 (1945); United States v. Three Winchester Carbines, 363 F.Supp. 322 (E.D. Wisc. 1973); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971); United States v. Casson, 288 F.Supp. 86 (D. Del. 1968). This series of cases was aptly summarized by the Fourth Circuit in its opinion in United States v. Johnson, 497 F.2d 548, 550:

"The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or 59 S.Ct. 816, 83 L.Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well regulated militia."

B. The Second Amendment Does Not Prohibit the Federal Government from Proscribing the Private Ownership of Firearms in the Absence of a Showing that the Keeping of Arms Bears a Reasonable Relationship to the Preservation or Efficiency of a Well Regulated Militia. Although it had indicated in dictum in Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) that the limitation imposed upon the Federal government's right to regulate firearms possession was not absolute, this dictum did not receive the Supreme Court's sanction until 1939 when, in United States v. Miller, 307 U.S. 174 (1939), the Government appealed a judgment sustaining a demurrer to an indictment for violation of the National Firearms Act.

In Miller, the defendant, charged with knowingly and willfully transporting a sawed-off shotgun in interstate commerce, charged that the statute was unconstitutional in that it (1) usurped the police power reserved to the states and (2) "offended the inhibition" of the Second Amendment. In light of its decision in Sonzinsky v. United States, 300 U.S. 506 (1937) and numerous cases decided under the Harrison Narcotics Act, 38 Stat. 785, 40 Stat. 1057. The Court found the defendant's objection that the National Firearms Act usurped police power reserved to the States to be "plainly untenable." 307 U.S. at 178. With respect to the defendant's Second Amendment claim, the Court held:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length; at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." 307 U.S. at 178.

The Miller decision represents the sole occasion on which the United States Supreme Court has examined the extent to which the "Militia Clause" of the Second Amendment circumscribes the Federal government's right to prohibit or restrict possession of firearms by private individuals. This question has been examined, however, by numerous Federal district and appellate courts. See cases cited at page 5, supra. Although the Court in Miller concentrated on the absence of any demonstrable military use of the particular weapon, subsequent lower court cases indicate that the touchstone of the Miller decision was the broader consideration of whether a reasonable relationship existed between the possession of the weapon and the preservation or efficiency of a well regulated militia. See, e.g., United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). As the First Circuit noted in its opinion in Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. den. sub nom., Velasquez v. United States, 319 U.S. 770 (1943), rehearing den., 324 U.S. 889 (1945):

"[W]e do not feel that the Supreme Court in . . . [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down

Cf. Tot v. United States, 319 U.S. 463 (1943).

The Court cited Alston v. United States, 274 U.S. 289 (1927); Nigro v. United States, 276 U.S. 332 (1928); United States v. Duremus, 249 U.S. 86 (1919); Linder v. United States, 268 U.S. 5 (1925); and United States v. Jin Fuey Moy, 241 U.S. 394 (1916).