Mr. McGIFFERT. That is correct. Senator KENNEDY. One of the arguments which has been made by those who have opposed the kind of legislation which has been introduced by the administration and Senator Dodd has been that any kind of regulation would discourage the lawful and the worthwhile purposes of legitimate sportsmen and other gun users. The thing which has impressed me in your testimony is that you have really adopted some rather extensive kinds of regulation to insure that these guns will not fall into the hands of those who, for one reason or another, might use them improperly. I am wondering if you very briefly could just review those procedures. I do not want to get into an elaboration. Perhaps we could have that submitted at a later time, but if you could at this point just review them, or the colonel may, if he would be kind enough, review those procedures. I understand they include fingerprinting and other extensive details. Colonel BERRY. We will separate that into two parts, because you are referring to the sale of weapons? Senator KENNEDY. That is correct. Colonel BERRY. There are no fingerprints involved in this. The purchaser first must submit a notarized certificate with his request for purchase of the weapon, and substantially what the certificate states we can insert into the record. Senator KENNEDY. You can submit that at a later time. (The information referred to was marked "Exhibit No. 90" and is as follows:) EXHIBIT No. 90 CERTIFICATE I hereby certify that I am a citizen of the United States of America; that I was born on ; that my Social Security (place) (date) number is__ -; that I am not a member of any organization which has as any part of its program the attempt to overthrow the Government of the United States by force or violence; that I am not under indictment for nor have I been convicted of a crime for which the maximum penalty imposable by law (whether or not actually imposed) is imprisonment for a term exceeding one year; that I am not a fugitive from justice; that my previous purchases of weapons from the U.S. Government are as listed below; that I am a member of the National Rifle Association, Membership Card No.---. --: Expira tion Date____ -; that I desire to purchase__ (exact description of item(s) to be purchased) for my personal use and not for resale or other disposition; that I will use this weapon in civilian marksmanship programs which promote practice in the use of rifled arms; that I have complied with all state and local requirements relative to the acquisition of firearms (evidence of compliance must be attached); and that I will comply with the Federal and National Firearms Acts and all state and local laws concerning the possession and use of firearms. Previous Purchases: MAKE MODEL CALIBER SERIAL NO. DATE OF PURCHASE NOTES 1. No weapon will be sold to an individual under 18 years of age. No pistol will be sold to an individual under 21 years of age. 2. This Certificate will be signed in the presence of and attested to by a Notary Public. 3. The purchaser's attention is directed to 18 U.S.C. 1001, which provides as follows: "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious of any trick, scheme, or device a material fact, or makes any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both." Colonel BERRY. It substantially follows the statement that he is not under indictment for crime nor has he been convicted of a crime, the sentence for which would entail more than 1 year in prison. This is submitted along with the purchase request. When this is received, a copy of the purchase request which lists the man's name, address, birth date, is given to the Alcohol and Tobacco Tax Division. These are here in the Washington office. Then, depending upon where the request is from, this copy of the request is furnished to a local office and then it is in turn given to the local law enforcement offical in that area where the purchaser resides. The purchase request is then, or the purchaser is then screened by the local law enforcement official, and we will either get a report back that there is no record, the man has no record, or in the case that Mr. McGiffert stated, in the some 4,000 we had gone through, we have received about 30 back, on which we have denied sale. This has comprised, under these circumstances, crimes for which, in other words, the man has accomplished a certificate, a false certificate, in this case. Senator KENNEDY. And you have also a registration procedure, is that correct, where you register the weapons, so for everyone who receives a weapon from the Department of Defense, that number will be registered? Colonel BERRY. It is more of a record file. In other words- Colonel BERRY. Yes. We keep that. In other words, the man's name and the serial number of the weapon he was sold is kept on record. Senator KENNEDY. Before you send that out, you will have some sort of communication back from the law inforcement people? Colonel BERRY. That is correct. Senator KENNEDY. And you will receive a response before you send out any? Colonel BERRY. That is correct. Senator KENNEDY. At what times do you take fingerprints from individuals in order to receive any kind of either ammunition or firearms? Colonel BERRY. As I stated when I started, neither weapon sales nor ammunition sales entail fingerprints. This is in the club procedure Mr. McGiffert described that we are finalizing now that we will obtain. fingerprints of the club officials. Senator KENNEDY. Fingerprints of Colonel BERRY. Of a club. This has nothing to do with purchase in this case. Mr. McGIFFERT. For the clubs, we now have the same Alcohol Tax Division check that we do for sales plus the fingerprint division. We are not quite at the stage where we are having the fingerprints checked. That will come along about a month from now that we will have moved into that stage. Senator KENNEDY. You plan to do that? Mr. McGIFFERT. Oh, yes. Senator KENNEDY. But in order to receive the loan of weapons in these clubs, they have to go through the procedure of being fingerprinted, is that right? Mr. McGIFFERT. That is correct. Senator KENNEDY. The officers have to go through this procedure? Mr. McGIFFERT. That is correct. Senator KENNEDY. So as I understand it, you have a rather extensive and elaborate procedure which has been established recently, and just let me say that I think you have acted extremely responsibly. Now, in spite of this, I understand from the comment made by Mr. McGiffert that you have had how many thousands of applications during the last 3 or 4 months? I think you have mentioned Mr. McGIFFERT. 3,000 or 4,000. Senator KENNEDY. So it does not appear that this elaborate procedure, which is the affidavit, return from the local police, the other kinds of details which have been indicated in that procedure, really has discouraged those that want to use weapons or acquire them at the reduced costs from DOD, from acquiring these kinds of weapons. Mr. McGIFFERT. No, there has not been any reduction in the volume of purchase requests as far as I know. The certificate which the purchaser must fill out has been changed to some extent. Things have been added to it. But from the purchaser's point of view, not very much has been added to the workload of him. What has been added is the workload on the Government in checking his qualifications. Senator KENNEDY. Have you had many complaints about the elaborateness of this procedure, the fact that these applicants now would be somewhat delayed in receiving their weapons. Mr. McGIFFERT. There will be some delay. We have not had any complaints. Senator KENNEDY. I would like to come back into a question. In earlier questioning, the chairman talked about how this program or the relationship between the DOD and the NRA was initially esta lished. As I understand, in response to some questions, I think that you were indicating, Mr. McGiffert, that the members of the Board of the NRA during this particular time in many instances were State adjutants and others that had a rather direct relationship with the military. Is that not true? Mr. McGIFFERT. That is correct. As a matter of fact, the original 1903 statute is written in terms of national matches open to the Array. National Guard, or organized militia of the several States. Senator KENNEDY. So this almost, in effect, was a quasi-public body, at least the officers and the board; the relationship which had been established under the early statute, I think, could certainly be reasor ably interpreted that way. Chairman DODD. Do you mean the NRA? Mr. McGIFFERT. That seems to be a perfectly appropriate comment. Mr. McGIFFERT. I am sorry, sir. Are you speaking of the NRA? Mr. McGIFFERT. I think the board is and always has been a public body. Senator KENNEDY. But even the NRA at that time, in its leadership and in its board, do you have any figures on the makeup at that time of its board? Because as I understand, its board at that time was made up of State adjutants and other officials, Reserve Army officers and others. At least, that is the information I have. I am wondering, Colonel, whether you would have any information as to the makeup of the NRA at that particular time. Colonel BERRY. The NRA or the national board, Senator? Senator KENNEDY. The NRA. Colonel BERRY. The NRA at that time, I do not have. Senator KENNEDY. In any event, they have the exclusive right for the purchase of ammunition as well as guns; is that not correct? Colonel BERRY. That is right. Senator KENNEDY. I am just wondering whether your legal counsel has looked into the question of the constitutionality of that, being able to sell only to one source, which is the NRA? Mr. McGIFFERT. We have not fully looked into it, Senator Kennedy. Senator KENNEDY. Would you be kind enough, or would you have your counsel take a look at this question, about whether this is constitutional? I would question that you could provide an exclusive right to an organization which is a private organization to receive these guns. If you would submit that to the committee. Mr. McGIFFERT. We shall be glad to. (The opinion requested was marked "Exhibit No. 91" and is as follows:) EXHIBIT No. 91 DEPARTMENT OF THE ARMY, Memorandum for the Under Secretary of the Army. Section 4308 (a) of Title 10, United States Code, provides, in part: (5) the sale to members of the National Rifle Association, at cost, * * of the arms, ammunition, targets, and other supplies and appliances, necessary for target practice. **** It has been suggested that this provision is Constitutionally objectionable in that (1) Congress may not confer such a benefit on the members of a private organization to the exclusion of all other citizens; and (2) the provision infringes the Constitutionally protected rights of individuals who wish to purchase weapons and ammunition from the Government at cost but do not wish to join the National Rifle Association. This memorandum will discuss, first, the Constitutional competence of Congress to legislate on the subject matter involved and in the manner chosen, and second, any possible infringement of an individual's Constitutionally protected rights. 1. A statute will be sustained against Constitutional attack if it finds its basis in the powers conferred by the Constitution upon the Congress, and if the means selected by Congress to achieve its purpose bear a rational connection to that purpose. The purpose of the Congress in establishing a Civilian Markemanship Program was to aid the training of the armed forces by stimulating interest in marksmanship training among the civilian community. This is a valid legislative purpose under the Constitution. Article I, Section 8, Clause 12, granting Congress power "to raise and support armies;" Clause 16, granting Congress power "to provide for organizing, arming, and disciplining the Militia:" and Clause 18, granting Congress power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." See also Artis IV, Section 3, Clause 2 authorizing the Congress to prescribe rules respecting the disposition of property of the United States. One of several vehicles which Congress chose to implement its purpose was the sale of weapons, ammunition and other materials for target practice at cost to members of the National Rifle Association, a class of individuals it deemed most likely to use these materials to further the basic purpose of marksmanship traising. This judgment was not unreasonable at the time it was first made, nor has it become unreasonable since. The NRA has many programs dealing with the handling of firearms, and its members constitute a clearly identifiable group of citizens who have, by joining the organization, demonstrated an interest in marksmanship training. While there may be individuals outside the NRA who have similar interests, ease of administration surely justifies the decision of Congress to limit the program to the conveniently defined class of NRA members, especially since the NRA is the only national organization of its kind. The small benefit which accrues to members of the NRA under the program is merely an incidental effect of the means chosen by Congress to implement its purpose, since Congress intended not so much to benefit the NRA members as to use them to stimulate greater interest in marksmanship training. The means chosen does not guarantee that the weapons and ammunition thus sold will Ľ fact always be used to further the Congressional purpose. But it is a reasonable means, and in my opinion no court would substitute its judgment for that of Congress on the ground that in disposing of Government property the statute unreasonably confers benefits on one group to the exclusion of all other citizens, II. The contention that the sales aspect of the Civilian Marksmanship Prie gram infringes the Constitutional rights of non-members of the National R.de Association is apparently grounded in the argument that the statute involves a form of unconstitutional forced association. In order to purchase weapons and ammunition at cost, the argument runs, individuals are compelled to join a organization which they would not otherwise join and which will use a portiove of the dues they must pay to advance political causes contrary to their personal convictions. A concept of a Constitutional right of non-association must derive from thFirst Amendment prohibition against any law “abridging the freedom of speech. “ Freedom of association is closely related to freedom of speech, because asso:2tion is often essential to make expression effective. It is much more difficult to derive a freedom of non-association from the Constitutional right of free speech In joining an organization, under compulsion or otherwise, an individual nor mally does not thereby surrender any right or opportunity to express himself in opposition to the organization's views, or indeed to join another association for the purpose of such expression. Accordingly, in the very few cases in which a concept of freedom from forced association has been advanced, the Supreme Court has rejected the contention that Government-compelled membership, w 18out more, infringes the Constitutional rights of an individual who would ret otherwise join a private association. Railway Employees' Dep't v. Hanson, 71 U.S. 225 (1956) (union shop under Railway Labor Act); Lathrop v. Dones we 367 U.S. 820 (1961) (integrated bar). In attempting to determine what features in addition to mere forced member ship will infringe the Constitutional rights of an unwilling member, the Corr has been badly split. It has never held that use of the unwilling member's dres for "political" purposes is unconstitutional, but in two cases it has gone to engsiderable lengths to avoid this Constitutional issue. Lathrop v. Donohue, swBPG International Association of Machinist v. Street, 367 U.S. 740 (1961). It appears that a majority of the Court perceives a serious Constitutional problem in art use of funds. One can only speculate where and how a line will be drawn 2 the Court ever faces the issue. An analysis of the problem should involve two elements: first, exactly what tie unwilling member is compelled to do; and second, by what means such acti are compelled. On the first element, the cases discussed make clear that compu. |