By Dave Hardy

FOPA: SETTING THE STAGE FOR VICTORY

NO SURRENDER

The straight skinny on the
Firearms Owners’ Protection Act (FOPA)
the law that saved gun rights

Nearly a quarter century ago, the Firearms Owners’ Protection Act was signed into law.

Looking back, it seems like an impossible victory.

by Dave Hardy

When the struggle started in 1979, Jimmy Carter was in the White House. Sen. Ted Kennedy of Massachusetts and Rep. Peter Rodino of New Jersey controlled the two judiciary committees that would have to approve the bill. And when the long haul was ending some seven years later, the measure had passed through the Senate, but Rodino still chaired the House Judiciary Committee and was proclaiming the bill “dead on arrival.” At the outset, NRA was a fraction of its current size, rejoicing in having grown from 600,000 members to a full 1 million. The NRA Institute for Legislative Action was barely four years old. The Internet was still far in the future, and anti-gunners had a solid lock on the mass media, where gun owners were depicted as demonic and the NRA as the prince of darkness—all images perpetuated by what is today known as the Brady Campaign, the American Bar Association and the u.s. Conference of Mayors.

The fight seemed impossible, yet we won. FOPA, as it became known, didn’t just change the restrictive Gun Control Act of 1968, it overruled no fewer than six anti-gun Supreme Court decisions and about one-third of the hundreds of lower court rulings interpreting the Gun Control Act.

To understand how vital this victory was, we have to take a trip into the past. Many gun owners and activists are too young to appreciate that what we today call the Gun Control Act of 1968 is largely not what was passed in 1968. What exists today can be abused. But what was passed in 1968 guaranteed abuse and virtually ensured defeat to any honest firearm owner who accidentally ran afoul of its terms.

The statute combined dangerously with the needs of a small but growing government agency. What is today the Bureau of Alcohol, Tobacco, Firearms and Explosives began as a small branch of the IRS, mostly directed at shutting down “moonshiners” in the rural South. In 1968, it had barely 200 agents assigned to gun cases. Then the rising cost of sugar ruined the moonshine industry, and survival of the agency required its bureaucratic leadership to shift into firearm enforcement—a fact that suited the Carter administration’s anti-gun goals nicely.

Agents were forced to move to urban areas and pressured to generate firearm confiscations and prosecutions at any cost. Many agents resigned or took disability retirement. Those who remained had to quickly produce cases and confiscations. But they had been trained to bust moonshiners in the hills, not to make undercover buys in the inner city, which could be quite dangerous. Many turned to making cases against targets that were easier and safer to deal with—namely, gun collectors and dealers.

The original Gun Control Act was an invitation—actually, dozens of invitations —for abuse. Among its worst features: • Convictions could be obtained even though the gun owner thought he was complying with the law and erred by accident. There was no requirement to prove criminal intent. Many provisions of the law were so ambiguous that it was hard to tell what was forbidden and what was allowed—but since honest intent was no defense, a wrong turn meant a felony conviction.

• One of the greatest ambiguities was the definition of who had to get a Federal Firearms License or be guilty of dealing in guns without a license. The law simply said that anyone who was “engaged in the business of dealing” had to have a license. Some courts bought the argument that this could apply to selling four to six guns over a year or so of time.

• Mass gun confiscations were simple. The Gun Control Act allowed not only the seizure of guns allegedly “used” in a violation, but also of guns “intended to be used” in one. If a gun collector or dealer could be charged with one violation, it could be argued that he “intended” to use his entire collection or inventory in violation of the law. Once guns were seized, there were no time limits for beginning forfeiture proceedings. The agency could simply seize an entire inventory—thus ruining the dealer—and wait months or years without giving him a day in court.

• The courts had held that even if a gun owner was found not guilty of criminal charges, the prosecution could still forfeit his guns, or revoke his dealer’s license.

• Dealers’ records and inventory could be searched and reviewed at any time, for no reason at all, and as often as agents wanted.

The agency took full advantage of these features. Undercover agents would attend gun shows, pick their targets and buy a couple of firearms from each. Repeat the process at another gun show or two, and they had the magic four to six sales that would prove the collectors were “engaged in the business of dealing.” At the next show, the targets would be arrested on felony charges and marched out in handcuffs. Then their entire collections would be confiscated.

Dealers were targeted in other ways. One imaginative case was brought against a dealer who sold a few personally owned guns, which had never been in his business inventory, without filling out federal transfer forms. The prosecutor argued that the Gun Control Act simply said a dealer must record all sales, and that included guns not in his inventory.

The dealer’s attorney managed to obtain a letter from the head of BATFE to a u.s. senator assuring the senator that the agency had never required a dealer to record his sales of personal, non-inventory guns. The prosecutor got the director to write another letter saying that he was wrong, and that the agency did require such records. Since criminal intent was not a requirement, the dealer became a convicted felon— for acts that even the BATFE director thought were legal! The agency records of firearms seized revealed its focus on collectors. Sixty percent of seizures were of rifles and shotguns. One seizure involved 48 Marlin rifles from the 19th century. Others involved Parker shotguns and Winchester Model 21s—hardly tools of street criminals. In one case, the agency sat on the seized guns for two years without taking action. When the owner sued for their return, he was promptly indicted.

Similar tactics were used against dealers. In one case, the dealer’s records were audited in detail, and he was then indicted on 115 felony charges. Every transfer form that listed a buyer’s city, but not his county, was made into a separate charge. Dealers’ inventories were seized, ensuring that they would be ruined even if acquitted. To create maximum fear, dealers and collectors were arrested six or eight at a time, followed by waves of publicity.

Something had to be done, and in early 1979 the newly created NRA-ILA obtained the first congressional hearing on abuses of the Gun Control Act, chaired by Sen. Dennis DeConcini, D-Ariz. The lead witness was David Moorhead of New Hampshire, a disabled veteran whom the Veterans Administration had set up in the firearm retail business, but who was indicted on highly technical charges. A federal judge threw the charges out and chewed out the prosecutor, but the agency kept Moorehead’s inventory anyway. He was followed by other collectors and dealers who had been similarly treated. Sen.

DeConcini said: “Frankly, I was shocked by yesterday’s testimony. The problem appears much greater in scope and more acute in intensity than I have imagined. It is a sobering experience to listen to average, law-abiding citizens presenting evidence of conduct by an official law enforcement agency of the federal government that borders on the criminal.” More hearings, and descriptions of abuse, followed.

Also in 1979, NRA-ILA drafted reform legislation, introduced in the House by Rep. Harold Volkmer, D-Mo. (now retired, and a member of the NRA Executive Committee) and in the Senate by Sen. James McClure, R-Idaho.

While the legislation would be modified over the next seven years of struggle, it required proof of criminal intent for gun charges, cut back greatly on the power to forfeit guns or to hold them without filing charges, and defined “engaged in the business of dealing” in a way that would exclude collectors’ traditional sales and swaps.

Then came 1981. Ronald Reagan entered the White House, Republicans took the Senate and Sen. Strom Thurmond, R-S.C., replaced Ted Kennedy as chairman of the Senate Judiciary Committee.

Reform became possible, but was still a battle. For over a year, unofficial negotiations were conducted to work out issues—add words to clarify here, replace an entire section there, add a new idea that further protected gun owners. The new version of the legislation also added features that barred forfeitures if the firearm owner was acquitted in a criminal case, allowed FFLs to have and sell non-inventory guns with minimal recordkeeping and eased restrictions on interstate sale of long guns.

In the 97th Congress (1981-82), the Senate Judiciary Committee reported out the bill, but with a killer amendment providing for a 14-day waiting period for pistol purchases. In the 98th Congress, NRA tried again, and in 1984 got a bill reported out without the waiting period, but the Senate leadership refused to bring it up for a vote.

Sen. McClure countered by attaching the measure to a vital appropriations bill. As a price for getting it removed, the Senate leadership had to agree to expedite the bill when Congress convened, to “hold it at the chair” so that it did not need to start over in the Judiciary Committee.

In the 99th Congress (1985-86), Sen. McClure got an early vote on the bill and it passed the Senate in July 1985.

It had taken six years of hard labor to bring it this far.

Now would be the hard part.

The speaker of the House, its top dog, was Rep. Thomas “Tip” O’Neill of Massachusetts, a key ally of Ted Kennedy and thoroughly anti-gun.

Upon hearing that FOPA had passed the Senate, Judiciary Chairman Pete Rodino pronounced it “dead on arrival” in the House. That boast turned out to be a tactical mistake.

Rep. Volkmer knew that under the House rules there was one way around a committee chairman who bottled up a bill: a discharge petition. A successful petition would discharge the committee from considering the bill and bring it up for a vote. To succeed under the rules as they stood then, a discharge petition had to be signed by a majority of the entire House, 218 members. The names of those who had already signed were known to the House leadership, which could therefore pressure and intimidate them, but kept secret from anyone else.

The procedure was so difficult that only seven petitions had succeeded in the past quarter century.

One of the standard responses to someone seeking signatures on a discharge petition was, “I agree with your bill, but I want to give the committee system a chance to work.” But, as Rep. Volkmer was happy to point out, Rodino’s boastful “dead on arrival” remark made this an impossible excuse.

Still, gathering signatures was hard work. In three months, Rep. Volkmer and NRA had garnered 158 signatures; then another month of work pushed that number to 203, plus 10 promises to sign—nearly enough. Rodino realized, too late, that the discharge petition was going to pass, and he quickly reported out a rival bill that had a few FOPA provisions—mostly watered-down—and included many anti-gun ones.

FOPA`s provisions had undergone many changes over the past seven years, mostly in the way of additional protections and guarantees. The core features of Rep. Volkmer’s 1986 bill were: • Intent required to convict. The Gun Control Act was a strict liability statute; even an honest, accidental violation was a felony. FOPA dramatically changed this. It required, for most offenses, proof of “willful” violation, meaning the person had to know not only what he was doing, but that it was illegal.

• “Engaged in the business.” This had been widely used to entrap collectors; four to six sales were all it took for a collector to be guilty of engaging in the business of dealing in guns without a license. FOPA changed this by specifically defining “engaging in the business” as “dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit,” which could not include “a person who makes occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.” • Confiscation of firearms. Under the Gun Control Act, firearms could be confiscated on the claim they were “intended to be used” in a violation.

FOPA dramatically changed the rules.

Seizure would in most cases require proof of a willful violation. Intent to use must be proven by clear and convincing evidence. The firearms to be seized must be “individually identified” as intended for misuse, and legal proceedings must commence within 120 days of seizure.

Finally, if the collector or dealer won the case, the government would have to pay the owner’s attorneys’ fees. (The bill’s opponents protested, correctly, that gun owners would have protections that no one else had in forfeiture proceedings!) • Confiscations and license revocations despite acquittal. Without FOPA, prosecuting agencies had forfeited collections and revoked licenses despite the gun owner being found not guilty in criminal proceedings. FOPA provided that seized guns must be returned upon their owner’s winning acquittal or dismissal of charges, and that license revocations could not be based on such charges, either.

• “Prohibited possessor” reforms.

Under the Gun Control Act, conviction for a felon in possession of a firearm could be obtained even if the possessor had received a pardon, had the conviction set aside or had his civil rights restored. Under FOPA, winning any of these remedies would restore gun rights, unless the order expressly provided to the contrary.

• Dealer records. The Gun Control Act allowed unlimited repetitive search of dealers’ records and inventory, which had been used as a tool for harassment.

FOPA allowed one annual inspection, plus inquiries to trace a specific gun or to carry out a criminal investigation of someone other than the dealer. If records are taken, the dealer must be given a copy so he can continue his business.

• Gun shows. The Gun Control Act only allowed licensees to transfer guns at their licensed premises. FOPA allowed dealers to conduct business at events sponsored by groups “devoted to the collection, competitive use, or other sporting use of firearms”—making possible gun shows as we know them today.

• Transportation of firearms. Under FOPA, notwithstanding any state or local law, a person is entitled to transport a firearm from any place where he or she may lawfully possess such firearm to any other place where he or she may lawfully possess it, if the firearm is unloaded and locked out of reach.

These were just the major changes.

FOPA also expanded licensees’ rights to appeal a revocation, allowed dealer sales of long arms to nonresidents if the sale complied with both states’ laws, allowed recovery of attorneys’ fees in any prosecution that was meant to harass or abuse, limited government powers to require reports from dealers and forbade creation of certain gun databases.

On April 9, 1986, the battle began on the House floor. When the dust had settled, Rep. Volkmer’s bill had been passed, and Chairman Rodino’s defeated. Rodino amendments that would have diluted FOPA’s provisions on intent and broadened its definition of who must have a dealer’s license were turned back. One anti-gun amendment offered by Rep. William Hughes, D-N.J.—a provision that limited civilian sale of fully automatic firearms to those already existing and in lawful ownership—did pass on a highly questionable voice vote.

The Hughes amendment created a dilemma. Investigation showed there was little chance of rescinding it. This was 1986, not 2011. Many House members were already being attacked as tools of the demonic “gun lobby,” and already feared they had stuck their necks out too far. To rouse them on behalf of fully automatic firearms was hopeless. The amendment could not be removed. The choice was to accept the bill as a package, or to kill it as a package.

Rep. Volkmer has described FOPA as the measure that saved gun ownership as we know it. There is much to be said for this appraisal.

In 2011, we seem to be at the beginning of a new stage in the American gun culture. Firearm sales are at record levels, many anti-gun politicians fear to touch the issue and the courts are recognizing the constitutional right of gun ownership. Would we have survived this far if, for the last 25 years, gun dealers had been subject to arrest on paperwork errors and their entire inventories confiscated even if they were found not guilty; and gun shows had regularly seen half a dozen honest collectors hauled away in handcuffs? It’s safe to say that the entire picture of gun ownership would be different. 1986 was the last, best shot at getting these protections. To kill the bill, lose seven years of development and alienate the majority of representatives who had rebelled against their leadership by signing the discharge petition would have ended hopes for stopping the many abuses.

In 1986, the gun rights movement really came into its own when it established its power to win on the offensive—even with one house of Congress under anti-gun leadership and the mass media in fervent support.

When the fight began with David Moorhead’s testimony six years earlier, NRA-ILA and other pro-gun groups were in their infancy. When President Reagan signed the bill into law on May 19, 1986, they had earned their spurs.