The Acting Executive Vice President of the National Rifle Association called the McClure-Volkmer law the "NRA's most historic victory."
Handgun Control, Inc., said, "Despite news reports to the contrary, when the smoke cleared ... Handgun Control, Inc., and its law enforcement allies were the real winners."
The International Association of Chiefs of Police said, "When you add the effects of S. 2414, McClure-Volkmer was a hollow victory for NRA."
It's no wonder that gun owners are confused about the law which went into effect, under still-debated temporary regulations, November 15. From coast to coast the gun fraternity is arguing over whether the bill was mostly a victory or mostly a defeat.
What these sharply differing opinions reflect is the angle from which Public Law 99-308 is viewed: NRA head J. Warren Cassidy's delight in getting any improvements passed; Handgun Control's relief in watering down so much of a seemingly unstoppable bill that would have devastated the Federal gun laws; the Constitutionalists' (and machine gun collectors') dismay over the first-ever Federal ban of any firearm; and general confusion about what's in the final version of McClure-Volkmer--which in seven years went through more changes than Gypsy Rose Lee.
To fairly judge the new law, it's necessary to understand not only its provisions--which are described in brief in the accompanying table--but what the bill was intended to accomplish.
The bill that became known as McClure-Volkmer had its inception January 16, 1978, the day I was named Acting Executive Director of the NRA's lobbying and political arm. At my first meeting with the staff of the NRA Institute for Legislative Action (ILA), I outlined the bill's basic provisions and the general plan of attack. Although expecting to be at ILA only a few months, I hoped that the offense would be continued long after I returned to editing Handloader and Rifle magazines in Arizona. The objective was not only to reform the Gun Control Act of '68, but to make foes respond to what we were doing, rather than our only reacting to their initiatives--for no team can win which only fights on defense.
Our situation on Capitol Hill was precarious. If the gun-grabbers had not been so greedy, had they proposed a "moderate gun control" bill instead of the bans, licensing or registration systems for which they lusted, they had the votes. According to ILA's most realistic assessment, we would have serious problems stopping the gun bill which President Jimmy Carter had already approved, and which was expected within the month. (Instead, the Carter Administration introduced a new set of regulations redefining and reinterpreting the existing law--GCA '68--and setting up a computerized registration system. We beat the regulations and cut BATF's budget $4.2 million.)
For a month, since he had first learned of the attempts of Executive Vice President Harlon Carter to fire ILA Executive Director Bob Kukla, Handgun Control Chairman Pete Shields had been telling Congress and the White House, "The NRA's in disarray; now's your chance."
To prove him wrong we had to act as if we had far more strength than we had, such as throwing maximum resources at secondary issues (like sending 90,000 Mailgrams to prevent the scrapping of surplus rifles). It was critical to avoid any gun bill votes until we could get the fledgling NRA political operation into high gear and weed out some anti-gunners--and scare the rest.
Whatever famous general first said, "When in trouble, attack," we followed his advice. The next week I "declared war" on the Bureau of Alcohol, Tobacco and Firearms in a speech at Meridian, Mississippi, citing the agency's abuses of civil liberties. (The NRA Establishment was horrified. Then-President Lloyd Mustin obtained a copy of the speech a few hours before the meeting and told Public Affairs Director Jim Norell, "Call Neal. Under no circumstances is he to deliver that speech." When Jim relayed the President's orders, I told him, "I'm sure sorry you were unable to reach me." And hung up.)
The attack on BATF was intended to set the stage for the reform of GCA '68. In a series of Congressional hearings, and even a television documentary, we showed how BATF was running roughshod. With a spotlight on them, the number of Federal firearms prosecutions dropped from about 2,500 in 1977 to less than 1,000 in 1979. Once the pump was primed, we "declared war" on the Gun Control Act, pointing out that the real problem wasn't the agency enforcing the law, but the law itself. In the fall of 1979 our draft bill was introduced, with a few changes, by Senator Jim McClure (R-ID) and Rep. Harold Volkmer (D-MO).
McClure-Volkmer was a complex piece of legislation with many provisions, deliberately drafted to conceal numerous subtle effects. There were two categories of changes: less-important improvements (some of which we expected to give up during the legislative process), and major attacks upon the core of the Gun Control Act--which were the justification for the immense effort it would take to pass the bill, and were not negotiable. Only those more-important sections will be discussed here, along with the portion of the Gun Control Act which they attacked.
Who's A Dealer?
No part of GCA '68 was more far-reaching than its requirement for a Federal dealer license for anyone "engaged in the firearms business" solely within a state. Because "engaging" was undefined, a person selling a couple of guns to a neighbor could be charged with unlicensed dealing.
McClure-Volkmer defines a dealer as "a person who devotes time, attention, and labor to 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 firearms, but such term shall 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."
Although that definition isn't as good as the original, as a result of the sweeping amendments accepted in October 1983 (about which, more later), it will keep a lot of gun sellers and swappers out of jail in the years to come.
Under GCA '68 all guns (not just handguns) had to be serial numbered, and dealers had to complete detailed records on every firearm and buyer. Those records had to be kept until the dealer went out of business, then shipped to BATF--where they could serve as the basis for national firearms registration.
A primary objective of McClure-Volkmer was to wipe out much of Section 923(g), the basis for those requirements and the mass of data on firearms and firearms owners kept in the Treasury Enforcement Communications System computer. The final version of the bill, because of the October 1983 amendments, preserves most of what we were attempting to destroy. The new law prohibits any additional reporting regulations, and it states no systems of registration may "be established." However, existing regulations are set in concrete, and the law no longer clearly wipes out registration systems which already exist.
Controls on ammunition, which were added to the Gun Control Act solely to make it different from the first gun bill that passed in 1968, serve no useful purpose--as even BATF acknowledged. There was much argument over McClure-Volkmer's elimination of ammo licensing and record-keeping, but the opposition never realized the bill lifted the prohibition against dealers selling ammo and components by "mail order." It has resulted in demands for "corrective legislation"--from both anti-gunners and firearms dealers afraid of losing ammunition business.
The Gun Control Act merely regulates the commercial firearms business, and no more affects crime with guns than regulating commercial airlines affects drug smuggling with airplanes. As verified by the Justice Department's massive Wright-Rossi study, predatory criminals almost never obtain their guns from licensed dealers; therefore, no amount of controls on dealer sales can reduce criminality.
Like other regulatory schemes, mere, evidence of violation--without criminal intent--was all that was necessary to convict; but instead of misdemeanor penalties, any violation of GCA '68 was subject to five years' imprisonment. McClure-Volkmer reduces offenses such as dealer record-keeping errors to misdemeanors. Further, it requires prosecutors to prove that felony violations are either "willful" or "knowing." Attorneys argue about the distinctions, but this revision may keep you out of jail--and reduce the chance that a naive innocent would even be charged.
Under the guise of "assisting states in the enforcement of their laws," and "regulating mail order firearms sales" GCA '68 prohibited anyone from transferring a firearm to a resident of another state (except for dealers selling long guns to residents of contiguous states).
The original McClure-Volkmer bill eliminated those restrictions, allowing anyone to buy, sell or give any kind of firearm to an individual in another state, so long as local laws and laws of the buyer's residence were not violated. That interstate sales section struck at the very heart of GCA '68--which is why it always drew the most fire.
In the October 1983 Senate Hearings, then-ILA Executive Director J. Warren Cassidy accepted a series of amendments which severely weakened McClure-Volkmer, including requiring all interstate transfers to be made through dealers. Sen. McClure, who had rejected those same amendments after Cassidy had negotiated them with Treasury and Justice that spring, was outraged by what had been done to his bill. (In fairness to Cassidy, he didn't think he was actually giving anything away, for he was convinced that, as he told the NRA Board in 1982, "McClure-Volkmer doesn't have a chance of passage and has never had a chance of passage." Even after the weakening amendments were adopted by the Senate Judiciary Committee, he informed a Maryland club that McClure-Volkmer was "breathing its last breath." As later events proved, his assessment was in error.)
On April 10, 1986, the House voted 233-184 to eliminate interstate handgun sales. Under the remaining bill, only long guns can be purchased from out-of-state dealers in face-to-face transactions.
Out of all the endless changes to McClure-Volkmer, interstate handgun sales was the only provision lost by an up-or-down record vote! Everything else was lost in backroom negotiations!
One of the most important provisions of McClure-Volkmer was the "Safe Transit" section, which stipulated that any legal possessor transporting unloaded "not readily accessible" guns interstate could not be prosecuted for violating state or local firearms laws.
Without that section, hunters traveling through New Jersey to Maine, competitors taking their guns through New York to Camp Perry, or individuals moving their guns with other household goods through prohibitive areas, would continue to be unwitting lawbreakers. They would continue to be subject to jail, fines, forfeitures of firearms, embarrassment and legal expenses if the guns were discovered as a result of an auto accident--or a police search of an NRA sticker on the car window.
"Safe transit" was misrepresented and strongly opposed by the "Law Enforcement Steering Committee" (a coalition of police organizations formed and financed by Handgun Control, Inc.). After passing both Houses relatively unscathed it was seriously damage--and almost destroyed--in a sneak attack called S. 2414, which we'll discuss.
M. G. Freeze
Everything in McClure-Volkmer regained lost ground except for the machine gun freeze, which was attached in literally the final minute of House debate by voice vote. It allows guns in the registration system to be kept or transferred, but prohibits any made or "papered" after May 19, 1986 to be sold to civilians.
If you're ever tempted by arguments for a "reasonable" gun law, remember what happened to law-abiding machine gun owners--whose guns are no more "evil" than any other gun. They comply with the "ultimate" gun law, and there is no documented instance of a legal machine gun being used in crime, but that made no difference to the gun-grabbers. On the evidence, they want eradication--and not just of machine guns.
The "joke" on the anti-gunners is that since 1935, only 127,000 machine guns had been registered, but a reported 109,000 additional machine guns were made or the paperwork started between April 10 and May 19.
We were always aware that McClure-Volkmer might provide a "vehicle" to which our foes could attach such anti-gun provisions. I LA knew we would have to watch our step when it neared passage, and be ready to kill it if any anti-gun provision were attached--demanding record votes on every issue.
But because NRA's objective seemed to change from "reform the Gun Control Act" to "Pass a bill," the original plans weren't followed. By the fact that the freeze had been allowed to pass without individual members being held accountable, and with no lawmakers being willing to chuck the bill because of it, even those of us willing to pitch eight years of work knew it was not possible to kill that section once it was attached. (Contrary to speculation among machine gun collectors, NRA made no deal to accept the freeze in exchange for the remainder of the bill.)
When McClure-Volkmer passed the Senate 79-15 in July 1985, House Judiciary Committee Chairman Peter Rodino (D-NJ) immediately declared it "dead on arrival." Knowing that Rodino would refuse to let his committee vote on the bill, the original strategy for forcing the bill to a House vote was through a rare and difficult parliamentary device called a discharge petition"--which required the signatures of a majority of Congress, and had been successful only seven times since 1960.
After it became obvious to Speaker Tip O'Neill that the discharge petition would be successful, he demanded that Rodino's Judiciary Committee quickly approve a "compromise" bill to head it off. That bill, which got to the House floor before the discharged voting procedure, denied us a floor vote on the Senate-passed bill. As a result of that parliamentary maneuvering, the version the House passed (by 292-130) was much different than the Senate bill.
Normally, such differences would be resolved by a conference committee headed by the chairmen of the House and Senate Judiciary Committees--but that would have allowed Chairman Rodino to kill McClure-Volkmer simply by refusing to schedule a meeting. The only way to get any part of the bill enacted was for the Senate to accept the House version.
The first hint of additional trouble was when Sen. Strom Thurmond (R-SC) commented to several Senators, "The police groups still aren't satisfied with the bill," Then Sen. Kennedy's hatchetman, Sen. Howard Metzenbaum (D-OH), began threatening a filibuster (which was a ruse, since we had the votes to stop it, and his filibuster would have prevented a vote on one of his pet bills--blocking an arms sale to Saudi Arabia). However, the Kennedy forces would have demanded votes on several politically sensitive issues--such as machine gun and silencer bans--on the eve of an election that would determine whether or not the Republicans would continue to control the Senate.
For all those reasons, our leaders in both Houses--and NRA--agreed not to oppose a separate bill, S. 2414, which took two more chunks out of McClure-Volkmer. In exchange they got an agreement from Kennedy's troops to let the House version of McClure-Volkmer pass the Senate without having to vote on any politically hazardous amendments. The two bills passed the Senate by voice vote, with McClure-Volkmer going to the President and S. 2414 going to the House.
Despite the best efforts of Gun Owners of America, Citizens Committee for the Right to Keep and Bear Arms, and the Firearms Coalition (which I represent), we couldn't get a single Congressman to demand a recorded vote--which would have instantly killed S. 2414. Not one Congressman was willing to upset a deal made by pro-gun leaders and NRA (which told its members S. 2414 was merely a "clarification" of McClure-Volkmer).
In addition to requiring dealers to maintain records on their personal guns, S. 2414 put far more restrictions on the important "Safe Transit" section. Anyone claiming it as a defense would have to prove that he could "possess and carry" those firearms both where he was going and were he lived. In a floor discussion before the bill zipped past each House by "unanimous consent," "carry" was said to mean "transport," which may help in future court cases, but "Safe Transit" was severely damaged.
In assessing the value of the final bill, as modified by S. 2414, it's important to consider factors beyond their direct effects. For one thing, the passage of McClure-Volkmer flipped the switch on the "gun control ratchet," which until now had given us nothing but ever-tighter gun legislation.
For another, co-sponsorship of the bill committed countless Congressman to reducing the gun laws. That was a major factor in preventing the "Gun Control Act of 1981" during the media frenzy touched off by the murders of a noted anti-gun writer and rock star John Len-non, followed by the shootings of President Reagan, Press Secretary Jim Brady and a security guard--with the television cameras rolling. Many friendly Congressmen pleaded for ILA to support--or not oppose--a "Saturday Night Special" bill, or some other "minor" gun law to reduce the editorial heat. That which didn't happen because of McClure-Volkmer can't be shown in a chart.
Considering what was left in the final bill, the machine gun freeze, the huge amount of time, money and effort that it cost--was McClure-Volkmer a victory for gun owners?
A QUICK LOOK AT THE MCCLURE VOLKMER ACT
By Neal Knox
Public Law 99-308 (S. 49), signed May 19, 1986. As amended by Public Law 99-360 (S. 2414), signed July 8, 1986
Machine sun population frozen at those registered May 19, 1986. Legal owners may keep or transfer those guns, and qualified individuals may purchase them, but no newly manufactured or converted full autos may be registered except for governmental use.
Long guns may be purchased in person from dealers in any state, provided the transfer is in compliance with the laws of both the state of sale and at the buyer's residence. Out-of-state handgun transfers and "mail order" purchases are still prohibited.
Ammunition and components may again be purchased by "mail order" (although explosives and combustibles may not be mailed). All ammunition record-keeping (except for armor-piercing ammunition) and ammunition-only deafer licensing is eliminated.
Dealer licenses are not required except for persons actually engaged in the firearms business with the "principal objective of livelihood and profit." No license is required for persons who make "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."
Prosecutors must prove that the most common "innocent violations" of the law are "willful"--unlicensed dealing, returning to one's home with a firearm improperly obtained out-of-state, or selling a gun to a nonresident. Most other violations of the law need only be proven to have been committed "knowingly." In general, "knowingly" means that violator was aware that he had committed a particular act, not necessarily that he also knew that it was illegal; "willfully" requires proof that the person committing the act was aware that it was illegal. (Under the old law, the only evidence necessary was to prove that an illegal act had occurred, regardless of the lack of criminal intent.)
Transportation of firearms is exempted from New York or Morton Grove-type prohibitive laws, provided the guns are unloaded and locked in the trunk of the vehicle (or other locked container other than a glove box or console), and provided the firearms may be possessed legally at the origin of the trip and destination. (Because of legislative history, this provision will probably be limited to interstate transit.) Note that these requirements are only to establish a defense against prosecution under a state or local law; the new law does not mandate that firearms be transported in this manner.
Gun registration systems are specifically prohibited. No new regulation may require dealer records to be "recorded at or transferred to" any governmental facility--but all old regulations are retained.
Lawyer fees must be reimbursed by the government if a gun owner defeats an effort to forfeit his guns, or if a judge finds a criminal prosecution to have been brought "without foundation."
Seized firearms have to be returned if the owner is acquitted of the criminal charge which served as the basis for their seizure. This provision eliminates BATF taking both criminal and civil action, as allowed by a 1984 Supreme Court decision.
The mandatory sentence for using a machine gun or silencer in a crime of violence is doubled to ten years, and will include carrying or using a firearm during "drug trafficking."
All persons are prohibited from knowingly selling a firearm to a prohibited buyer.
Restoration of gun ownership rights, formerly denied as a result of a conviction under the Gun Control Act and other felony firearms violations, is now possible. Expungement of a state felony record, or restoration of civil liberties by a state, automatically eliminates any firearm ownership liability.
Firearms forfeitures are limited to guns used or intended to be used (where "intent is demonstrated by clear and convincing evidence") in violations of the act.
Machine gun definition is expanded to include "any part designed and intended solely and exclusively" for conversion of a semi-auto to a machine gun--but individual machine gun parts are not registerable as machine guns. Contrary to reports, a semi-automatic containing individual machine gun parts is not classified as a machine gun unless it is capable of full automatic fire.
Silencer definition is expanded to include a part or parts designed and intended for fabricating a silencer.
Dealers must maintain a bound book of private transfers regardless of when or how the firearms were obtained. (Arguments continue as to whether, as required by the temporary regulations, a dealer must use the same bound book required for his business transfers.)
Routing dealer inspections without notice are limited to once each 12 months; warrants are otherwise required, except in the course of a criminal investigation of someone other than the dealer.
"Firearms tracing" is limited to "bona fide criminal investigations" by the law, but still being debated for the final regulations.
Dealers may sell at gun shows, providing statutory authority for an activity allowed by regulation since 1984.
No revocation of a dealer's license may be based upon criminal charges on which he had been acquitted.
Most dealer record-keeping violations will be punishable as misdemeanors, subject up to one year imprisonment and $1,000 fine, instead of five years, $5,000 and permanent loss of firearms ownership rights, as under the old law.
Barrels may not be imported for handguns which could not be imported if assembled. (Questions have been raised, but are presently unresolved, about the continuing lack of regulations stipulating which firearms are importable under the "particularly suitable for sporting purposes" requirement.)
(BATF published "temporary regulations" in the Oct. 29, 1986 Federal Register. Those both went into effect Nov. 15 and were opened for 90-day public comment; final regulations are expected in the spring of 1987.)
Neal Knox's byline first appeared in Guns & Ammo in 1966, in scholarly articles about all facets of gun laws. He has been editor of Gun Week, Handloader and Rifle magazines, listed in Who's Who In America since 1977 and headed the NRA's lobbying efforts from 1978 to 1982. Although best known as a defender of the Second Amendment, he is an active shooter, handloader, hunter and gun collector, and was the 1974 National Benchrest Champion. A native Texan, he resides in a Washington, D.C. suburb where he is director of the Firearms Coalition.
Please note: Some tables or figures were omitted from this article.