Tuesday, September 13, 2016

Amnesty any Administration can Implement

In 1968, Lyndon Baines Johnson forced the gun control act of 1968 through a reluctant congress.  The act was not popular, but Johnson's ability to twist arms and bribe Congressmen was legendary.  As part of the deal making to get GCA 1968 through Congress, a provision for amnesty of arms controlled by the National Firearms Act (NFA) was included.  The original amnesty only ran for 30 days, from October 2 to November 1, 1968.

In the original amnesty, no tax was charged.  It was not limited by state or to certain dates of manufacture.  Information collected during the registration was prohibited for use in prosecution under the firearms law. Fingerprints or photographs were not required. From smallarmsreview.com:
The Congress resolved this conflict by (1) prohibiting any information required to comply with the NFA to be used against a registrant or applicant “in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence”; (2) establishing an amnesty period from November 2, 1968, to December 1, 1968, when persons could register unregistered NFA firearms with immunity from prosecution; and (3) prohibiting ATF from releasing any information about the registration status or ownership of any NFA firearm. During the 1968 amnesty, firearms were registered on Form 4467.

The 1968 amnesty is the first and only one the federal government has held so far. As was the case under the original NFA, fingerprints or photographs were not required to voluntarily register an NFA firearm during the 1968 amnesty period.
The original authorization for an amnesty was for 30 days.  However, the statute that provided for the amnesty also provided that the Secretary of the Treasury could authorize as many future amnesties as they decided would "contribute to the purposes of this title." 

From PUBLIC LAW 90-619-OCT. 22, 1968, found on page 1236 of United States Statutes at Large Volume 82.djvu/1278:
(d) The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purposes of this title. TITLE III — AMENDMENTS TO TITLE VII O F THE OMNIB U S C R I M E CONTROL A N D S A F E S T R E E T S ACT O F 1968
I do not believe this statute has ever been repealed or superseded. It appears to be effective law.

No Congressional approval is required for this amnesty.  Any Secretary of the Treasury may declare an amnesty any time they wish, if they give notice in the Federal Register, and the amnesty is for a period of 90 days or less.

As a practical matter, no Secretary of the Treasury would be able to declare such an amnesty without at least the tacit approval of the President.

At the time of the bills passage, I recall it was understood that there would be regular amnesties.  Regular amnesties would have made sense for several reasons. 

First, it would continue to bring otherwise illegal arms into the registration system.  People who feared firearms confiscation could see that it did not happen, and decide to register their arms.

Second, it would allow a mechanism for people who inherited unregistered firearms, or who obtained them in some other, unintentional way, such as finding an old Thompson or M2 carbine in a barn or attic, to bring these firearms into the registration system.  The law does not allow these firearms to be registered, unless it is through an amnesty.

Third, it would allow for the transfer of arms owned by police departments to individuals.  Numerous NFA arms are owned by police departments without being registered in the NFA.  Police departments are exempt from the requirement to register. Technologies and departmental needs change. Amnesties would allow police departments and other government entities to register these firearms so that they could be sold to individuals, benefiting both the departments and the individuals. Hundreds of vintage Thompsons, for example, were destroyed by the FBI, when they could have been sold to collectors for millions of dollars.

Fourth, it would allow discrepancies in the NFA lists to be corrected.  In an amnesty, owners of registered arms could check to see if their registration was correctly recorded by the ATF.  If it were not, it could be corrected without legal liability or cost.  From previous cases, it is known that the NFA registry is incomplete and inaccurate.

I am not a lawyer, not do I play one on the Internets.  The authority appears to be there.  A president, if he chose to do so, could have the Secretary of the Treasury declare one or more amnesties for NFA registrations.  Precedent has already been set from the amnesty in 1968. That amnesty allowed for registration of all NFA items without the payment of the tax, fingerprints, or photographs. 

A president could use the legal executive action of an amnesty as a lever to extract concessions from Congress, such as liberal national reciprocity for carry permits, removal of suppressors, short barreled rifles or shotguns from the NFA, or other obvious, commonsense and reasonable reforms.  Such reforms are long overdue.

It is possible that previous presidents were not aware of this authority, or did not wish to exercise it for fear of criticism in the media. 

A President who is elected in spite of all out opposition of the media, would already have shown that they need not fear them.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Link to Gun Watch


Anonymous said...

I'm afraid I have some bad news for you. In the first place the 1934 NFA is unconstitutional according to Shall Not Be infringed so any law based on an unconstitutional act is also unconstitutional. Secondly The federal register is unconstitutional. According to the constitution all law must originate in congress that means no agency is capable of making law. and posting anything for 90 days does not make it law. If congress was not so busy passing laws for special interest groups it would have time to deal with the laws that are being passed by the use of the federal register. Note the president has no law making authority, yet if he writes an executive order and places it on the federal register it becomes law. According to an estimate made by a group interested in finding out, they claim there are more than 63 million laws and regulation on the books across this country state, federal, county and city. 98% of them are in fact unconstitutional. We agreed to a limited government. Not even the best attorney's can comply with 63 million laws. So how can the public be expected to.
Next any kind of an amnesty is constitutionally illegal. to pass an writ of attainder or an ex post facto law is forbidden in writing in the constitution. Popular opinion does not count and never will what is written is what must be enforced until the constitutional writing is legally changed. but right now any kind of an amnesty is forbidden. for guns, illegal aliens or any thing else. The very reason the second amendment exists is to have the ability to control government overreach. Shall Not Be Infringed is a founders and framers command to forbid government from attacking our right to control government at any time it becomes necessary. congress has never had and is strictly forbidden to attack our rights to control its behavior and our right to self defense from government or anything else. It is the duty of government to notify the people if we are being invaded. Government has never had the authority to control our weapons of self defense.

Anonymous said...

As much as I wish they would do it, they won't. An amnesty like this would allow people to make and register new machineguns. They won't allow that to happen.

Jay E. Simkin said...

The authority vested in the Secretary of the Treasury under GCA '68 was transferred to the Attorney General under the Patriot Act.

Even if the authority to declare an amnesty - now vested in the Attorney General - is extant, Congress would react by repealing that authority.

It would be far more helpful to get Congress to delete "sporting purpose" from GCA '68. That term - nowhere defined in US law or regulations - allowed the Attorney General to ban ANY firearm s/he chooses and to reclassify as NFA devices, any firearm not so classified.