Lethal Passage: The Story of a Gun

by Erik Larson

  One result of all this mayhem was a host of gangster movies, beginning with the 1930 hit Little Caesar. In 1931 alone, Hollywood made fifty gangster films. And once again myth and reality converged. On October 14, 1931, Edward G. Robinson, who starred in Little Caesar, sat in on Al Capone’s tax evasion trial, which would end three days later and result ultimately in his being sent to a brand-new prison built on Alcatraz Island in San Francisco Bay.

  A more significant result, however, was the National Firearms Act of 1934, which regulated the sale and manufacture of machine guns and other “gangster-type” weapons, such as silencers and sawed-off shotguns, and gave responsibility for enforcement to the Alcohol Tax Unit of the Internal Revenue Service. You could still buy a machine gun, but now you had to register the gun and pay a $200 tax. At the time, this was real money, more than the retail price of a Thompson, which Auto-Ordnance had reduced to $175 in its continuing quest for orders from the U.S. military. The tax remains $200 today, no longer quite the disincentive the law’s crafters meant it to be.

  In 1938, Congress passed the next round of federal controls with the Federal Firearms Act, which required the licensing of gun dealers and set the cost of a license at a whopping one dollar. (The National Rifle Association had argued even this was too high and should have been something nominal, say fifteen cents or a quarter.)

  The next great spasm of domestic violence took place in the 1960s, with the assassinations of John F. Kennedy, Robert Kennedy, and Martin Luther King, Jr.; Charles Whitman’s shooting spree from the top of the University of Texas tower, which killed fourteen people; and the overall unrest that tore the nation’s cities apart in the late 1960s. This time the result was a more comprehensive set of firearms laws, called the Gun Control Act of 1968. It boosted dealer fees to $10 and required that they keep detailed records of incoming and outgoing guns. It also forbade the sale of rifles, shotguns, and handguns to felons and others deemed unfit to own guns. And taking its cue from Lee Harvey Oswald’s mail-order purchase of the rifle he used to kill the president, the law banned mail-order sales of guns directly to individuals. Congress assigned enforcement of the act to the Alcohol & Tobacco Tax Division of the IRS, which became the Alcohol, Tobacco & Firearms Division.

  Law-enforcement agents within the ATFD welcomed their new responsibilities. They were accomplished lawmen with a lot of nitty-gritty, dangerous experience in battling the moonshiners of the South. But officially they were employees of the Internal Revenue Service, the nation’s tax collector. The images clashed. “When our law-enforcement officers were asked who they were, they would say Treasury agents,” said Rex D. Davis, a former director of ATF who at the time was an assistant regional commissioner of the ATFD. In outlying field offices, the agents placed signs on their doors that said Treasury Department. “Our guys didn’t want to be Internal Revenue agents.”

  The Gun Control Act greatly expanded the division’s law-enforcement responsibilities. “There’s no question the Gun Control Act of 1968 was like a breath of fresh air,” Davis said. “It gave us a very important law-enforcement jurisdiction, and one that was nationwide as opposed to the moonshine and illicit-liquor enforcement, which was primarily regional, the Southern tier of states.”

  When Davis became director in 1970, his “hidden agenda” included separating the ATFD from the IRS. Indeed, the division’s new responsibilities had begun causing something of an image problem for the IRS. When agents participated in raids or became involved in shoot-outs, the headlines inevitably described them as IRS agents, at a time when the IRS was actively promoting the value of voluntary compliance with federal tax laws. On July 1, 1972, the Treasury Department removed the division from the IRS and made it the Bureau of Alcohol, Tobacco and Firearms. (The bureau would later take to calling itself ATF, dropping the B.) Although most of the agents were delighted, a few were fearful, Davis said. “I think some people had a little trepidation. Really, what we were doing was putting ourselves out in front, and there were probably some people who felt it was nice and safe and cozy being a little thing in a great big place like Internal Revenue.”

  Inevitably, the new bureau found itself on a collision course with the National Rifle Association.

  By 1972, the NRA was already a formidable foe, but it was wrestling with its own internal schism. In 1968 the NRA’s executive vice president, Gen. Franklin Orth, committed what the association’s hard-liners considered an unpardonable sin. By then, the post of executive vice president had become the most powerful position within the NRA, far more so than the presidency. Orth had dared support, in public, federal gun controls. Not just any controls, moreover, but the Gun Control Act of 1968. The ATFD’s agents may have welcomed the new law, but the NRA’s hard-liners loathed it. And yet Orth, in testimony before a congressional committee debating the proposed legislation, had said no “sane American who calls himself an American” could object to the bill’s elimination of mail-order sales.

  Orth was one of the NRA’s old guard, who saw the NRA in more traditional terms as an organization devoted to promoting hunting and hunter safety, protecting hunters’ rights, and protecting the environment. A growing segment of the NRA’s membership, however, wanted the NRA to become a political force and in so doing to become the nation’s primary guardian of the Second Amendment. To these hard-line fundamentalists, led by Harlon Carter, a former head of the U.S. Border Patrol, any gun law was an infringement of the Constitution and was to be opposed without compromise. Gradually, the hard-liners gained influence and, in 1977, at the NRA’s annual meeting in Cincinnati, Ohio, won control of the board and elected Harlon Carter to be the new executive vice president. The coup, known within the NRA as the Cincinnati Revolt, set the NRA on the path it still follows today as a relentless opponent of gun control and anyone who supports it. Carter became a hero. “To the NRA faithful,” wrote Osha Gray Davidson in his 1993 book, Under Fire: The NRA & the Battle for Gun Control, “Harlon Carter is Moses, George Washington, and John Wayne rolled into one.”

  The NRA chose to attack ATF as a means of diminishing the impact of the newly passed legislation. “That was a well-known strategy in Washington,” Davis said. “If you’re opposed to a law, the way to attack it is to attack the agency which has responsibility for it, and thereby reduce the enforcement of law.”

  When Davis became director, he set out at first to try to smooth relations between his agency and the NRA. “I thought it made sense,” he said. “I guess probably what I started out doing was giving them too much credit. I thought that two sides to an issue through dialogue and good-faith efforts could make it a little easier on each other. But I found that not to be true.”

  He told the NRA’s new executive vice president, Gen. Maxwell Rich, he would investigate any NRA complaints about his agency and give him a full report. “That didn’t work. Their primary interest as I saw it and as I found out was in criticizing and attacking the credibility of the bureau, rather than trying to reach some accommodation.”

  Indeed, to Harlon Carter’s NRA the new bureau was the vilest of enemies. The bureau did little to smooth relations. In March of 1978, for example, ATF agents seized four machine guns and three other weapons from the NRA’s elaborate firearms museum on the first floor of its Washington headquarters, charging the weapons had not been registered in accordance with the National Firearms Act. “We didn’t feel that anybody was above the law,” Davis said. “We saw a clear violation.” The NRA countered that the guns no longer worked and were thus exempt from provisions of the act. A federal judge agreed and ordered the bureau to return the guns. There was more to this raid on NRA headquarters than dispassionate enforcement of federal law. Davis said, with a smile, “I suspect that we would have been a little bit gleeful if we had found something a little bit more severe.”

  The NRA kept the pressure on Davis and the bureau. The association routinely attacked the bureau before Congress, depicting its agents as secret police who systematically trampled the rights of or
dinary citizens. It cited example after example of what it alleged to be ATF abuses, including the case of Kenyon Ballew, a pressman with The Washington Post, who was shot in the head and paralyzed during an ATF raid on his apartment. The NRA and Gun Owners of America charged that the bureau’s men barged in without reasonable cause and shot an innocent gun owner.

  In fact, Ballew possessed many firearms and chose to point one at the raiding party as they entered, prompting a Montgomery County police officer to fire. The bullet struck Ballew in the head. ATF agents seized three hand-grenade casings and a supply of black powder, which together constituted an illegal destructive device. Ballew sued, but lost. The federal court found that the ATF agents “had acted reasonably” and agreed the “three grenades together with the powder seized were in combination both designed and intended to be used as destructive devices.”

  The NRA, however, took Ballew, by now in a wheelchair, to its annual meetings and wheeled him onstage as evidence of ATF’s infamous behavior.

  Despite these attacks, the bureau felt reasonably safe. When Rex Davis became director, Richard Nixon was still president, and he favored some gun controls. So did Gerald Ford. And so too did Jimmy Carter. At one point, apparently with the blessings of the Carter White House, the Treasury Department invited Rex Davis to design new regulations that would help improve enforcement of the Gun Control Act—whatever regulatory powers Davis felt he would most like to have and that could be instituted without new legislation.

  Davis, delighted at the invitation, published his bureau’s proposed new rules, which would have created unique serial numbers for every gun (as things stand now, guns from different manufacturers may have the same serial numbers) and established a central gun-tracing database that would include every step in the travels of every gun up to the last retailer in the chain. The database, however, would not include the names of the gun buyers themselves.

  To the NRA, this was tantamount to establishing a national registration system. Outright confiscation of guns would surely follow. “The NRA went ape,” Davis said. The association sent out an emergency plea to its members to write letters of protest. “We got over three hundred thousand pieces of correspondence, of which seven thousand were in favor. We had mailbags in the corridors.”

  Nonetheless, ATF persisted and asked Congress for the $10 million the bureau felt it would need to develop the new computer system.

  “We took a beating,” Davis said. “Congress not only didn’t give us ten million dollars. They took ten million dollars out of our budget. So they penalized us for having the gall to initiate these programs. Needless to say, the regulations were withdrawn by Treasury, by the Carter administration, with their tails between their legs.”

  And ATF was left to cope with $10 million less in its operating budget.

  Nonetheless, ATF still had the benefit of an administration that at least in spirit favored gun control. But Carter wouldn’t be president forever.

  During the 1980 campaign, Ronald Reagan made it clear where his sympathies lay. He wooed the NRA with a campaign pledge that if elected president, he would abolish the hated bureau.

  The NRA and its powerful allies, including Rep. John Dingell of Michigan and Rep. John Ashbrook of Ohio, both members of the NRA’s board of directors, moved in for the kill. The NRA went so far as to produce a TV documentary called It Can Happen Here, alleging ATF abuses. In the film, Representative Dingell appears and says, “If I were to select a jackbooted group of fascists who are perhaps as large a danger to American society as I could pick today, I would pick ATF.”

  What particularly irked the NRA was ATF’s tactic in the late 1970s of sending agents into gun stores masquerading as illegal buyers to see whether the dealers would sell them guns or suggest that they arrange a straw-man purchase. “We were using those kinds of techniques,” Rex Davis said, “because unscrupulous dealers were then, and are now, a major source for the illegal acquisition of guns.” Other agencies used similar sting techniques, but only ATF seemed to catch the heat. “If the guy was a pharmacist selling illegal narcotics,” Davis said, “nobody would scream at all.”

  During a 1980 hearing, ATF defended itself by arguing that it had in fact conducted few operations against dealers. Its new director, G. R. Dickerson, testified, “We often hear that ATF makes a practice of harassing licensed dealers in an attempt to drive them out of business. I point out to the committee in the period July 1, 1979, through April 30, 1980 … we had over eight thousand seven hundred firearms investigations. Only one hundred and sixty-two involved licensed dealers.”

  His testimony confirmed the fears of members of the gun-control camp, who charged that if anything ATF was too soft on dealers. At the same hearing the National Coalition to Ban Handguns presented a survey of 136 licensed gun dealers in New Haven, Connecticut, which found that “more than three-fourths (77.2 percent) of licensees were in direct violation of at least one federal, state, or local law or regulation. Nearly one-half (48.5 percent) were in violation of two or more firearms, tax, or zoning requirements.”

  The NRA and its allies kept up the pressure. By September 1981 the NRA seemed assured of achieving the destruction of the bureau. That month, at a meeting of the International Association of Chiefs of Police in New Orleans, President Reagan announced that he planned to fire ATF’s firearms enforcement agents and dissolve the bureau.

  The NRA was delighted; Reagan’s audience was not.

  Reagan had misjudged the respect accorded ATF and its firearms tracing services by other law-enforcement agencies. A slap against ATF was a slap against all law enforcement.

  The administration backpedaled. Reagan still promised to dismantle ATF, but proposed now to shift the firearms agents from the bureau to the Secret Service. Everyone seemed to like this idea, including ATF agents, who, although they would have preferred an outright transfer to the Department of Justice, looked forward to joining a bona fide law-enforcement team and shedding the last vestiges of ATF’s tax-collecting past.

  The gun lobby now balked at the idea.

  At a February 1982 hearing before a subcommittee of the Senate Appropriations Committee, Representative Dingell reiterated his “jackboot” statement word for word. Of ATF, he said, “I think they are evil.” He warned, however, that shifting the bureau’s agents to the Secret Service “is a little like rearranging the deck chairs on the Titanic.” He charged that “the transfer of BATF to other agencies affords only the certainty that other agencies will be contaminated by the kind of people and behavior we have seen on the part of BATF.”

  The Gun Owners of America testified that the proposed transfer might make things worse than they already were “if the extraordinary powers available to the Secret Service were ever made available to the one thousand former firearms agents at BATF.”

  Neal Knox, head of the NRA’s chief lobbying arm, the Institute for Legislative Action, testified that most of the “provisions of the Gun Control Act are purely regulatory in nature; they should be administered by a regulatory agency and not by a criminal law-enforcement organization.” The NRA, he said, believed ATF should remain a freestanding agency under the Treasury Department.

  The NRA’s turnabout prompted Rep. William J. Hughes, chairing a House hearing on May 4, 1982, to chide, “In the confusion, the National Rifle Association, apparently with a straight but somewhat reddened face, has been able to publicly change its position and is now in the unlikely role of supporting the continuation of BATF, on the grounds that the Secret Service, to which most of BATF’s functions were to be transferred, might actually take the functions seriously and not be so easy to intimidate,”

  The NRA, according to author Osha Davidson, suddenly saw that the shift to the Secret Service would indeed enhance ATF’s prestige. “The NRA realized,” he writes, “that it wouldn’t be able to call Secret Service agents ‘jackbooted fascists’ and get away with it.”

  The bureau survived, but the dangers of aggressive, proactive investigation
were imprinted forever in its institutional memory. “Some of the things we did were probably not the best techniques,” said Bernard La Forest, a veteran agent and special agent in charge of ATF’s Detroit office. The bureau, he said, took its lesson to heart: “Before you conduct an investigation of a licensed dealer, you better have some pretty good proof that there’s a high probability he’s engaged in some type of illegal activity.”

  Throughout the 1980s, the NRA continued its fight to restrict ATF’s powers over dealers. In May of 1986, again with the help of powerful congressional allies, most notably Sen. James McClure of Idaho and Rep. Harold Volkmer of Missouri, the NRA succeeded in muscling through the McClure-Volkmer Act, also known as the Firearms Owners’ Protection Act. A more appropriate title might have been the Gun Dealers’ Protection Act. The bill banned the sale and manufacture of new and hitherto unregistered machine guns, thanks to a last-minute amendment added by Representative Hughes, but it eliminated a previous requirement that gun dealers keep records on ammunition sales. It also explicitly barred any central registry of dealer records, limited dealer inspections to once a year and only after advance notice, allowed the interstate sales of rifles and shotguns, gave private gun owners more leeway to sell guns without first acquiring a dealer’s license, and, perhaps most important in terms of understanding ATF’s treatment of Guns Unlimited, required prosecutors to prove that dealers charged with violating firearms laws did so “willfully.”

  It was this bill too that reduced to a misdemeanor the penalty for dealers found to have violated record-keeping rules, while retaining the felony charge for consumers who did likewise.

  Before the act was finally passed, Representative Volkmer called it “the second most important step in the history of American gun owners. The first was the Second Amendment to the U.S. Constitution.” Representative Hughes said the bill “would elevate gun dealers to a special level of privilege never before seen in the law.”